Jenner & Block

“The Expanding Reach of the FCA and the One Roadblock Limiting Liability,” The Government Contractor

In this article, Jenner & Block Partner Carrie F. Apfel examines the recent trend of the U.S. government’s vigorous enforcement of the False Claims Act (FCA).  Carrie explains that the courts have expanded the scope of the FCA in “creative and novel ways.”  Still, she observes that courts have refused to increase the scope of FCA liability under the implied certification theory: that is, claims that involve an alleged false certification that is implied rather than expressed.  She concludes that “despite the recent trend toward broadening the range of liability under the FCA, claims asserted under an implied certification theory still seem to fall out of bounds. Although this seemingly has not slowed the Government’s or relators’ enforcement actions, it has provided a little breathing room for contractors who are otherwise drowning in an ever-expanding sea of false claims allegations.”