Jul 142016

Skyrocketing FCA Penalties Ripe For Constitutional Challenges

Scott D. Stein and Brenna E. Jenny
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As we reported here, DOJ recently implemented steep increases to FCA penalties as required by the Bipartisan Budget Act of 2015, effectively doubling the prior rates.  Constitutional challenges to FCA penalties under the Excessive Fines and Due Process clauses have traditionally not fared well.  Supreme Court case law calls on courts to examine the ratio between punitive and compensatory damages when assessing such challenges, and the steep hikes in penalties may alter how courts adjudicate these claims.  In an article available here, we discuss the future of constitutional challenges to FCA judgments in light of the starkly higher penalty range.

Scott D. Stein

Chicago

sstein@sidley.com

Brenna E. Jenny

Washington, D.C.

bjenny@sidley.com

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