The Department of Education recently announced two sets of investigations stemming from the administration’s application of the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard. The announced investigations are focused on institutional compliance within the context of the Supreme Court opinion and subsequent guidance from the Department of Education in the February 14, 2025, “Dear Colleague Letter.” Based on our experience and the regulatory requirements, institutions subject to an investigation should carefully evaluate the scope of the investigation or inquiry, consider the legal rights and remedies available to OCR, as well as identify the procedural framework, including, but not limited to, agency hearings and appeals. Read the full Alert on the Duane Morris website.
Webinar Replay: FCA for Educational Institutions
A replay of the Anatomy of the False Claims Act for Educational Institutions webinar is now available for viewing.
First Circuit Embraces More Restrictive View of FCA Kickback Enforcement Provision
The United States Court of Appeals for the First Circuit’s opinion in United States v. Regeneron Pharmaceuticals, Inc. has sharpened the circuit split for demonstrating the effect of a kickback on healthcare decisions under the False Claims Act (FCA). The Regeneron court held that an FCA claim based on an alleged violation of the Anti-Kickback Statute (AKS) requires demonstrating that an alleged unlawful kickback was the “but-for” cause of a submitted claim. Read the full Alert on the Duane Morris website.
Federal Judge Issues Preliminary Injunction Blocking Specific Provisions of Executive Order on DEI
In Nat’l Assoc. of Diversity Officers in Higher Ed. v. Trump, D. Md, the United States District Court for the District of Maryland issued a preliminary injunction that blocks, at least for now, some of the more salient provisions of President Donald Trump’s executive order on diversity, equity and inclusion (DEI) that affects federal contractors and other private sector employers. […]
Section 3(b)(iv) requires the head of each government agency to include in every contract or grant a term requiring the contractor or grantee to certify its compliance with federal anti-discrimination laws (i.e., no illegal DEI). Moreover, such certification is a material term to the government’s payment under the contract or grant for purposes of claims under the False Claim Act where penalties for violations include, but are not limited to, treble damages.
DOJ Brings Robust False Claims Act Enforcement in 2024
On February 22, 2024, Department of Justice Principal Deputy Assistant Attorney General, Civil Division, Brian M. Boynton announced the DOJ’s civil enforcement priorities at the Federal Bar Association’s Qui Tam Conference.
Boynton emphasized the DOJ’s volume of enforcement activity in fiscal year 2023, noting that 2023 marked a record number of False Claims Act (FCA) settlements and judgments and for the number of Civil Investigative Demands (CIDs) issued by DOJ—a staggering 1,504. These robust tools for investigating FCA matters were triggered by a blend of government-originated FCA investigations and qui tam lawsuits filed by relators. Boynton noted that last year, the government opened approximately 500 FCA matters without a whistleblower, which was another record for the DOJ. More than 700 additional FCA cases were filed by qui tam relators. Read the full Alert on the Duane Morris website.
SCOTUS Focuses on Subjective Intent in Overturning False Claim Act Cases
Writing for a unanimous Supreme Court of the United States, on June 1, 2023, Justice Clarence Thomas issued a decision clarifying the knowledge requirement for cases brought pursuant to the False Claims Act (FCA). In overturning the consolidated cases of United States ex rel. Schutte et al. v. SuperValu Inc., et al. and United States ex rel. Proctor v. Safeway, Inc., the Supreme Court rejected the Seventh Circuit’s focus on the objectively reasonable interpretation of an ambiguous rule or regulation. Instead, the Court held that the FCA’s scienter requirement refers to the defendant’s subjective knowledge and belief at the time the claim is submitted. Read the full Alert on the Duane Morris website.