For many years, the Justice Department rarely filed third-party briefs in non-intervened whistleblower qui tam actions. Indeed, unless the litigation raised questions about the constitutionality of the False Claims Act and its qui tam provisions, DOJ largely play the role of bystander and let the parties fight it out. Recently, the Justice Department has become more active in educating the courts through statements of interest and amicus briefs. Many FCA experts credit DOJ’s active participation with reversing the tide on many FCA legal issues, including the application of Rule 9(b).

Recently, in January 2015, DOJ Appellate filed an amicus brief attempting to correct mischaracterizations of how CMS and OIG interpret exceptions to the statutory definitions of remuneration under the Stark Law and the AKS. It emphasized the importance of a “proper interpretation” of these statutes, both because the laws independently are key mechanisms for preventing fraud and abuse, and because they serve as predicates for FCA liability.

The Justice Department should be applauded for taking a proactive approach to protecting these key fraud-fighting statutes.

More information for whistleblowers is located at the Nolan Auerbach & White website.