2023 was an active year for FCA jurisprudence. The Supreme Court settled two important questions that have long divided the lower courts.
In Supervalu, the Court held that the appropriate standard to be applied to the scienter – or state of mind – requirement under the FCA is the defendant’s subjective intent, not whether the defendant’s actions were consistent with an objectively reasonable interpretation of the underlying statute or regulation. And in Polansky, the Court held that the government’s qui tam dismissal power extends throughout the life of a case, even if it has declined to intervene during the initial seal period, and that courts should apply the standard set out in Federal Rule of Civil Procedure 41(a) to determine whether voluntary dismissal is appropriate.
However, uncertainty continues to cloud the issue of the required causal nexus for FCA claims predicated on violations of the Anti-Kickback Statute; the Supreme Court declined to take up the question as recently as last October and a forthcoming decision from the First Circuit Court of Appeals is expected to further deepen the circuit split.
Finally, in terms of enforcement, the government continued to focus on fraud in the cybersecurity and health care sectors, further expanding its enforcement activities to encompass private equity investment in health care ventures as well. We hope this guide provides a useful review of 2023’s most noteworthy FCA developments, and a preview of potential FCA developments to come in 2024.