In an article (subscription required) published today in Law 360’s newsletters covering Appellate, Corporate, Government Contracts, Health, Life Sciences, and Public Policy matters, James Segroves, a member of Proskauer’s Whistleblowing & Retaliation Group, commented on the circuit split regarding whether 2009 amendments to the False Claims Act (FCA) that expanded the range of conduct targeted by the FCA can apply retroactively.

As we previously reported (here), Congress passed the 2009 amendments in response to the U.S. Supreme Court’s unanimous ruling in Allison Engine Co. v. Sanders, which held that the FCA’s false-statement provision required proof that a defendant made a false statement with the specific intent of getting a false claim paid by the government itself.  That is no longer required under the as-amended FCA.  Many FCA cases could be affected by a potential Supreme Court ruling addressing the retroactivity of the 2009 amendments because, as Segroves observes:

We don’t know how many cases are out there that raise this issue.  These cases are filed under seal and often remain under seal for years.  Is it the tip of the iceberg? Is it something less?  I don’t think you can really say.

Nevertheless, a Supreme Court ruling could have a wide-ranging impact in determining the limits of congressional authority to amend statutes retroactively.  Indeed, Segroves observes that “[h]istory has shown that Congress is not inclined to narrow the FCA,” and that “[i]f it is settled that the statute can be amended retroactively, that would certainly” open the door to Congress passing more retroactive changes.

Segroves further observes that a Supreme Court decision could affect the state versions of false claims statutes that whistleblowers and their government supporters have sought to apply retroactively in states such as New York and New Mexico:

A number of states are still on the fence about whether to enact their own false claims statutes. Several have done so, and made them expressly retroactive . . .  The question of whether the 2009 amendments violate the [U.S. Constitution’s] ex post facto [clause] … if [the] Supreme Court rules on it, will affect the state laws.

We will continue to monitor these issues and keep our readers apprised of developments regarding the retroactivity of the 2009 amendments to the FCA.