Beyond DOJ’s Blockbuster Year in FCA Recoveries, Whistleblower Activity and Investigations Continue

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Elizabeth N. Jochum and Jennifer A. Short

Jennifer A. Short headshot image


The attention-grabbing headline from the Department of Justice’s (“DOJ”) annually released statistics on False Claims Act (“FCA”) settlements and judgments is that the government recovered more than $5.6 billion from FCA cases in fiscal year (“FY”) 2021. While this is the second largest annual recovery in FCA history and the largest since 2014, procurement fraud cases represented a substantially smaller percentage of the total recoveries than in years past. Healthcare resolutions dominated, accounting for more than five billion of the $5.6 billion in settlements and judgments. In previous years, healthcare matters have accounted for closer to two-thirds of the total recoveries, making last year’s outsized healthcare figure—driven by the blockbuster opioid settlements of late 2020[1]—an outlier.

Beyond the top-line dollar figures, the report shows that FCA activity continues at a healthy, if not fully robust, pace. The COVID-19 pandemic continues to impact qui tam filings; the number of new whistleblower suits dropped to 598 in FY 2021, a ten-year low. The number of DOJ-initiated matters remains higher than the near-term average, particularly in healthcare, but also in Department of Defense (“DOD”)-related cases. Contractors, healthcare providers, and others—especially those who received federal funding through pandemic aid programs—can anticipate that FCA investigations and resolutions will play out over the next several years.

Continue reading “Beyond DOJ’s Blockbuster Year in FCA Recoveries, Whistleblower Activity and Investigations Continue”

FCA/FCPA: Fraud and Enforcement

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Jennifer A. Short headshot image

Blank Rome Partner Jennifer A. Short will serve as a speaker at Pub K Annual Review 2022, a four-day online event being held by PubKGroup January 24 through 27, 2022.

Jennifer’s session, “FCA/FCPA: Fraud and Enforcement,” will take place on Thursday, January 27, from 12:00 to 1:50 p.m. EST, and will break down the top trends in enforcement of the False Claims Act (“FCA”) and Foreign Corrupt Practices Act (“FCPA”).

Other panels include:

      • Bid Protests
      • Investigations, Disclosures, S&D
      • Labor and Employment
      • Costs, Pricing, and Audits
      • Grants and Cooperative Agreements
      • Cybersecurity and Information Technology (“CMMC”)
      • Claims, Disputes, and Terminations
      • Construction Contracting
      • Small Business Contracting
      • Mergers and Acquisitions
      • Statutes, Regulations, EOs, and Policies

CLE may be available.

Blank Rome is pleased to be a sponsor of this program.

For more information and to register, please visit the event webpage

Department of Justice to Prioritize Cybersecurity Fraud through New Civil Cyber-Fraud Initiative

Sharon R. Klein, Jennifer A. Short, and Robyn N. Burrows

Sharon R. Klein headshot image
Jennifer A. Short headshot image


On October 6, 2021, the U.S. Department of Justice (“DOJ”) announced a new Civil Cyber-Fraud Initiative to pursue cybersecurity fraud matters using the enforcement mechanisms of the False Claims Act (“FCA”).

This initiative follows DOJ’s four-month effort to review its cybersecurity strategy and reflects the government’s increased focus on contractor data security. Led by the Civil Division’s Commercial Litigation Branch, Fraud Section—i.e., the DOJ Section responsible for investigating and litigating FCA matters—the initiative targets government contractors and grant recipients that “put U.S. information or systems at risk” by “knowingly”:

      • providing deficient cybersecurity products or services;
      • misrepresenting the company’s cybersecurity practices or protocols; or
      • violating their obligations to monitor and report cybersecurity incidents and breaches.

We discuss the cybersecurity landscape preceding the new initiative, possible impacts and focus areas of the initiative, and how contractors should prepare for potential enforcement.

To read the full client alert, please visit our website

Blank Rome Government Contract and White Collar Defense & Investigations Attorneys Appointed to American Bar Association’s Public Contract Law Section Leadership

Blank Rome LLP is pleased to announce that partners Dominique L. CasimirJustin A. ChiarodoStephanie M. HardenLuke W. Meier, and Jennifer A. Short; senior counsel David M. Nadler; and associate Robyn N. Burrows, of the firm’s nationally recognized Government Contracts group, have been appointed to leadership roles for the American Bar Association’s (“ABA”) Public Contract Law Section.

They will serve in the following roles for the 2021–2022 term:

      • Dominique Casimir: Co-Chair – Debarment & Suspension Committee; Vice-Chair – Diversity Committee
      • Justin Chiarodo: Vice Chair – Mergers & Acquisitions Committee
      • Stephanie Harden: Vice Chair – Accounting, Cost & Pricing Committee
      • Luke Meier: Vice Chair – Bid Protest Committee
      • Jennifer Short: Vice Chair – Procurement Fraud & False Claims Committee
      • Dave Nadler: Vice Chair – Procurement Fraud & False Claims Committee
      • Robyn Burrows: Associate Editor – Procurement Lawyer

The ABA Section of Public Contract Law serves to provide balanced recommendations on procurement policy, provide a forum to engage with colleagues across all segments of the procurement industry, and gain insight into and develop unique perspectives of federal, state, and local public contract law. For more information, please visit the Section’s webpage.

Old Dominion, New Privacy Law: The Virginia Consumer Data Protection Act

With the recent adoption of the Virginia Consumer Data Protection Act (“VCDPA”), the state’s consumers will have new rights to understand what data a company collects about them, how that data is used, and with whom they share it. In short, the new law will have a national impact on any company doing business in the state.

Led by attorneys from Blank Rome’s Privacy, Security & Data Protection and White Collar Defense & Investigation Groups, this complimentary webinar will provide in-depth analysis of the VCDPA and timely insights on how businesses should prepare to comply with its provisions, including discussion of:

      • Scope of the VCDPA;
      • The VCDPA compared to the California Consumer Privacy Act and other privacy regimes;
      • New data rights of consumers;
      • Information security requirements; and
      • Issues related to enforcement.

PRESENTERS

  • Sharon R. Klein, Partner and Chair, Privacy, Security & Data Protection, Orange County, CA
  • Alex C. Nisenbaum, Partner, Privacy, Security & Data Protection, Orange County, CA
  • Jennifer A. Short, Partner, White Collar Defense & Investigations, Washington, D.C.

CLE Credit

This course is anticipated to qualify for the following CLE credits: VA 1.0 general credit

QUESTIONS? Please contact Courtney Litman via e-mail.

Tuesday, September 21, 2021
10:00‒11:00 a.m. PDT / 1:00‒2:00 p.m. EDT
Online Event

REGISTER HERE

Paycheck Protection Program Audits Are Upon Us—Borrowers Prepare!

Merle M. DeLancey Jr., Craig Stetson*, and Jennifer A. Short

In our last post on this topic, we touched on how the acceptance, use, and forgiveness of Paycheck Protection Program (“PPP”) loans can be viewed in the context of a Defense Contract Audit Agency (“DCAA”) audit. This post focuses on audits and investigations involving PPP loans. Close scrutiny of PPP loans is not a prediction; it is reality. The Small Business Administration (“SBA”) has announced it will audit all PPP loans in excess of two million dollars following a lender’s submission of a borrower’s loan forgiveness application, and it reserves the right to “spot check” any PPP loan of a lesser amount at its discretion. The Department of Justice has already charged multiple individuals with PPP fraud. And this is just the beginning of what many think will be a tidal wave of enforcement activity involving PPP loans.

Overview of the PPP

The PPP is the largest relief measure for small businesses under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The government has made available nearly one trillion dollars in PPP relief funds through four separate funding measures ($349 billion via the CARES Act; $310 billion via the PPP and Health Care Enhancement Act; $284 billion via the Consolidated Appropriations Act of 2021; and $7.25 billion via American Rescue Plan Act of 2021).

The PPP makes available guaranteed SBA loans to small business that meet certain eligibility requirements. In addition, PPP loans can be forgiven fully if used properly to cover specified business expenses such as payroll, rent, utilities, mortgage interest, and other limited uses. As of April 11, 2021, the SBA had approved more than 9.5 million loans totaling more than $755 billion using more than 5,400 lenders.

Continue reading “Paycheck Protection Program Audits Are Upon Us—Borrowers Prepare!”
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