06 August 2021

FCA Amendments Resurface in Senate Infrastructure Bill

As discussed further here, a bipartisan group of senators, led by Senators Grassley (R-IA), Leahy (D-VT), Wicker (R-MI), Durbin (D-IL), and Kennedy (R-LA), recently introduced proposed amendments to the False Claims Act. Those amendments have now been incorporated into the infrastructure bill currently being debated in the Senate.

The amendments largely mirror the original proposals, with two notable exceptions. First, the amendments revise the language used in the proposed burden-shifting regime relating to materiality. The original proposed amendment stated that a relator or the government could prove materiality “by a preponderance of the evidence,” at which point defendants could “rebut an argument of materiality…by clear and convincing evidence.” The provision now states that a defendant “may rebut evidence of materiality…only by clear and convincing evidence that the Government regards the matter as immaterial.” The new language underscores how this legislation appears designed effectively to take materiality off the table as a defense.

Second, the new version makes a defendant-friendly change to the clause governing discovery in declined qui tams. Under the initial proposal, the government could move to force the defendant to pay its costs in responding to the defendant’s discovery requests, and the defendant would need to pay unless it can demonstrate the information is “relevant,” “proportionate to the needs of the case,” and “not unduly burdensome on the Government.” The version in the Senate infrastructure bill removes the ambiguous criterion regarding undue burden on the government.

We will continue to monitor developments with the proposed legislation and report as they unfold. A copy of the proposed legislation is available here.

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