In June 2023, the Supreme Court issued two major decisions
concerning the U.S. False Claims Act ("FCA"). These
decisions, which clarify the FCA's scienter standard and
certain procedures around the government intervening in FCA cases,
have key implications for in-house counsel and compliance officers
involved in litigating FCA actions and implementing FCA-related
compliance programs. FCA compliance is a key issue for companies
considering applying for, or taking part in, government grant and
loan programs, given these programs often require applicants and
participants to make both express and implied representations in
connection with receiving federal funds.
I. Overview
While there are several different theories of liability under
the FCA, at its core, the statute prohibits "knowingly"
presenting a false claim for payment to the U.S. government, or
"knowingly" causing such a claim to be made. See
31 U.S.C. § 3729. One unique procedural aspect of FCA actions
is
