By Fisher, JD, CHC, CCEP

False Claims Act Enforcement Priorities in 2018

Overview

The False Claims Act (FCA) remained the federal government’s primary civil tool for combating fraud against taxpayer-funded programs in 2018. Although the statute dates to 1863, when Congress responded to contractors that defrauded the Union Army, its modern enforcement focus was concentrated on health care fraud, government contracting, and other false claims involving federal funds.

Qui Tam Actions Remained Central

A defining feature of the FCA is its qui tam provision, which allows a private citizen—known as a relator or whistleblower—to sue on behalf of the United States and share in any recovery, typically between 15% and 30%, plus potential legal fees. In 2018, qui tam actions continued to drive much of FCA enforcement, especially in health care, where DOJ recoveries again exceeded $2 billion.

DOJ’s 2018 Shift Toward Dismissal

The most significant 2018 development for relators was the Department of Justice’s increased emphasis on dismissing weak or counterproductive qui tam cases instead of merely declining to intervene. Under the January 2018 Granston Memorandum, DOJ attorneys were directed to consider dismissal when a case lacked legal or factual merit, duplicated information already known to the government, threatened agency policies, risked disclosure of sensitive information, consumed disproportionate government resources, or involved serious procedural problems.

Practical Implications for Defendants and Relators

For defendants, the 2018 enforcement priorities created two important takeaways. First, FCA exposure remained high in industries that receive substantial federal funds, especially health care, defense contracting, and federally funded programs. Second, defendants in declined qui tam cases had a stronger basis to ask DOJ to evaluate whether continued litigation served the government’s interests. For relators, the Granston policy meant that a declined case could face active government opposition if DOJ concluded that the lawsuit conflicted with enforcement priorities or imposed unnecessary burdens.

Conclusion

In 2018, FCA enforcement remained aggressive, but DOJ’s priorities became more selective. Health care and federally funded programs continued to present significant enforcement risk, while the Granston Memorandum signaled that the government would more closely scrutinize qui tam cases pursued in its name. The result was a more strategic enforcement environment for whistleblowers, defendants, and counsel evaluating FCA exposure.

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