On February 1, 2022, the Department of Justice (“DOJ”) released its annual report summarizing False Claims Act (“FCA”) enforcement activity in FY 2021.  The report confirmed what many practitioners already suspected: FY 2021 was another banner year in FCA enforcement.  DOJ’s annual judgments and settlements exceeded $5.6 billion, making FY 2021 the second largest annual recovery ever (and the largest since 2014).  But beyond this top line number, a closer analysis of the figures in DOJ’s report offers additional insight on strategies for preventing and mitigating costly FCA exposure.

There is little doubt that the $5.6 billion in total FCA recoveries will dominate headlines, and understandably so given the 150% increase from FCA recoveries a year ago.  (It bears mentioning, however, that more than half of this total is attributable to few large cases initiated under the prior Administration that were resolved in FY 2021.)  Beyond the overall recovery figure, FY 2021 also saw 801 new FCA matters, which is roughly consistent with recent years but still historically high.  Further, while approximately 75% of new cases were initiated by relators, FY 2021 marked just the second time since 1995 that the U.S. Government initiated over 200 non-qui tam matters.  Debate has already begun about whether this increase reflects more aggressive FCA enforcement under the Biden DOJ or simply normal statistical fluctuation, but the Government’s appetite for identifying and pursuing its own FCA cases is something to watch in the year ahead.

As is typically the case, the vast majority of FCA recoveries arose in the health care space, but there was still plenty of action elsewhere.  In the defense industry, for example, 52 new cases were filed in FY 2021 and recoveries totaled ~$120 million.  These figures are consistent with recent trends, as the ten-year median for new FCA cases and recoveries in the defense industry is ~53 and ~$121 million, respectively.

Notably, 99.9% of the dollars recovered in the defense industry FCA actions last year came from cases where the Government was a party (either from the outset or through intervention), while a mere $35,000 was recovered in declined cases.  This data lends statistical support to the conventional wisdom that the best time to win an FCA case is pre-intervention.  After all, government contracting regulations are extraordinarily complex, and in many cases some initial education about the relevant regulatory scheme can help persuade an investigator or DOJ attorney that a matter does not merit intervention.

Finally, contractors should not miss the prominent reference to DOJ’s new Cyber Fraud Initiative in the press release accompanying the annual report.  DOJ’s decision to devote a separate section of its FY 2021 release to the new initiative is a telling indication of the Government’s enforcement emphasis on cyber issues, particularly given that the Cyber Fraud Initiative was not even announced until FY 2022.  It also is notable that the discussion of the Cyber Fraud Initiative includes a whistleblower reporting link, which reinforces the view of senior DOJ officials that whistleblowers are expected to play a “significant role in bringing to light knowing failures and misconduct in the cyber arena.”

Robert Huffman

Bob Huffman represents defense, health care, and other companies in contract matters and in disputes with the federal government and other contractors. He focuses his practice on False Claims Act qui tam investigations and litigation, cybersecurity and supply chain security counseling and compliance…

Bob Huffman represents defense, health care, and other companies in contract matters and in disputes with the federal government and other contractors. He focuses his practice on False Claims Act qui tam investigations and litigation, cybersecurity and supply chain security counseling and compliance, contract claims and disputes, and intellectual property (IP) matters related to U.S. government contracts.

Bob has leading expertise advising companies that are defending against investigations, prosecutions, and civil suits alleging procurement fraud and false claims. He has represented clients in more than a dozen False Claims Act qui tam suits. He also represents clients in connection with parallel criminal proceedings and suspension and debarment.

Bob also regularly counsels clients on government contracting supply chain compliance issues, including cybersecurity, the Buy American Act/Trade Agreements Act (BAA/TAA), and counterfeit parts requirements. He also has extensive experience litigating contract and related issues before the Court of Federal Claims, the Armed Services Board of Contract Appeals, federal district courts, the Federal Circuit, and other federal appellate courts.

In addition, Bob advises government contractors on rules relating to IP, including government patent rights, technical data rights, rights in computer software, and the rules applicable to IP in the acquisition of commercial items and services. He handles IP matters involving government contracts, grants, Cooperative Research and Development Agreements (CRADAs), and Other Transaction Agreements (OTAs).

Photo of Peter B. Hutt II Peter B. Hutt II

Peter Hutt represents government contractors in a range of complex investigation, litigation, and compliance matters, including False Claims Act and fraud investigations and litigation, compliance with accounting, cost, and pricing requirements, and contract claims and disputes.
Peter has litigated more than 20 qui…

Peter Hutt represents government contractors in a range of complex investigation, litigation, and compliance matters, including False Claims Act and fraud investigations and litigation, compliance with accounting, cost, and pricing requirements, and contract claims and disputes.
Peter has litigated more than 20 qui tam matters brought under the False Claims Act, including matters alleging cost mischarging, CAS violations, quality assurance deficiencies, substandard products, defective pricing, Iraqi procurement fraud, health care fraud, and inadequate subcontractor oversight. He has testified before Congress concerning proposed amendments to the False Claims Act.

Peter has also conducted numerous internal investigations and frequently advises clients on whether to make disclosures of potential wrongdoing. He is recognized for his work by Chambers USA, which notes that Peter is not only “an excellent litigator,” but is “great to work with and very knowledgeable.”

Peter also represents clients in a wide range of accounting, cost, and pricing matters, as well as other contract and grant matters. He is experienced in addressing issues concerning pensions and post-retirement benefits, contract formation, TINA and defective pricing, claims and terminations, contract financing, price reduction clauses, subcontracting and supply chain compliance, specialty metals compliance, and small business and DBE compliance. He has litigated significant cost, accounting, and contract breach matters in the Court of Federal Claims and the Armed Services Board of Contract Appeals.

Photo of Frederic Levy Frederic Levy

Frederic Levy is one of the nation’s leading suspension and debarment lawyers, focusing his practice on the resolution of complex compliance and ethics issues. He has successfully represented numerous high-profile corporations and individuals under investigation by the government in civil and criminal matters…

Frederic Levy is one of the nation’s leading suspension and debarment lawyers, focusing his practice on the resolution of complex compliance and ethics issues. He has successfully represented numerous high-profile corporations and individuals under investigation by the government in civil and criminal matters, including False Claims Act cases, and in suspension and debarment proceedings to ensure their continued eligibility to participate in federal programs. He has also conducted numerous internal investigations on behalf of corporate clients, particularly in the areas of program fraud and export controls, and often involving sensitive personnel or fiduciary matters. He has also advised corporations in voluntary or mandatory disclosures to a variety of federal agencies. Mr. Levy regularly counsels clients on government contract performance issues, claims and terminations, and he litigates such matters before the boards of contract appeals and in the Federal Circuit.

Photo of Michael Wagner Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.