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.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.