As we previously reported here, record numbers of cases are being filed by “whistleblowers” under the FCA—approximately 1,300 qui tam suits last year alone.  This morning, Brenna Jenny, the Deputy Assistant Attorney General, Civil Division, Commercial Litigation Branch, announced at a conference that much of the surge in qui tam complaints is being driven not by insiders, but by entities set up to mine publicly available government data sets.  That is putting pressure on DOJ’s Civil Fraud Section, tasked with investigating qui tam allegations.  In order to address the challenge, Jenny announced the Fraud Oversight through Careful Use of Statistics (FOCUS) initiative, which presents an opportunity for data miners to meet with the Civil Fraud Section to explain the reliability of their data. Though not a pre-filing requirement, data miners who choose to participate “should be prepared to explain what differentiates their approach, how they validate their findings, and why their methodology provides a reliable basis for identifying high-quality, actionable False Claims Act matters.”  DOJ’s announcement of the FOCUS initiative makes clear that “the Department will prioritize working with data miners that have demonstrated an investment in pre-filing diligence and commitment to analytical rigor, familiarity with program rules, and legally sufficient allegations.”  It will be interesting to see whether the Department increases its exercise of authority to dismiss qui tam suits brought by data miners that cannot so demonstrate.

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