Oct 12015

Fourth Circuit Agrees to Consider Statistical Sampling and DOJ Authority To Oppose Settlements in FCA Cases

Scott D. Stein and Brenna E. Jenny
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The Fourth Circuit has agreed to hear an interlocutory appeal from a case in the District of South Carolina, regarding the now hotly-debated role of statistical sampling in establishing liability and damages in FCA cases.  See United States ex rel. Michaels v. Agape Senior Cmty., Inc., No. 15-238 (4th Cir. Sept. 29, 2015).  The Fourth Circuit will be the first appellate court to weigh in on the issue.  The district court initially ruled that the relator could not use sampling for purposes of extrapolating damages, but it ultimately certified the question for interlocutory appeal, alongside a second question as to whether the government has unfettered veto authority over settlements resolving non-intervened qui tam suits.  The government and the defendant in the qui tam suit both filed briefs opposing appellate review of the district court’s ruling on statistical sampling, while the relator urged the Fourth Circuit to rule on the question.  We will continue to monitor and provide updates on the appeal.

A copy of the Fourth Circuit’s order can be found here.

Scott D. Stein

Chicago

sstein@sidley.com

Brenna E. Jenny

Washington, D.C.

bjenny@sidley.com

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