November 2, 2016

02 November 2016

Fourth Circuit Appears Inclined to Avoid Sampling Question

As we reported here and here, the question of whether statistical sampling can be used to establish FCA liability became intertwined in a Fourth Circuit interlocutory appeal challenging the government’s assertion that it has unfettered authority to veto FCA settlements.  United States ex rel. Michaels v. Agape Senior Cmty., Inc., No. 15-2145 (4th Cir.).  During oral arguments last week, the Fourth Circuit panel demonstrated a clear preference for avoiding the sampling component of the appeal, likely leaving the lower courts to continue to develop a piecemeal approach.