DOJ’s FOCUS Initiative: False Claims Act Qui Tam Complaints Derived From Data Mining

On Thursday, DOJ’s Civil Division announced FOCUS: the Fraud Oversight through Careful Use of Statistics initiative. The initiative is a reminder to potential False Claims Act defendants that whistleblower risk can originate from both insiders and outsiders—but that lawsuits brought by outsiders relying on publicly available information may continue to be met with skepticism, particularly where the whistleblower's theory rests on statistical inference rather than direct evidence of fraud.

Context

The False Claims Act (FCA) is one of the federal government’s most potent anti-fraud statutes. It authorizes whistleblowers (known as relators) to file civil actions in the government’s name, alleging that a defendant knowingly submitted (or caused the submission of) false or fraudulent claims for payment. These whistleblower-initiated actions are known as qui tam cases.