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David Chizewer and Matthew Organ Quoted in Law360

September 14, 2016

A recent uptick in the U.S. Department of Justice’s use of statements of interest in whistleblower False Claims Act cases is likely heavily influenced by the need to shake out where FCA law stands after the U.S. Supreme Court’s prominent Escobar decision, attorneys say.

A statement of interest, or SOI, is a filing used by the DOJ to express its view on particular legal and policy considerations in a case where it is not a party. An SOI is typically differentiated from an amicus brief in that the government, at least ostensibly, is not explicitly weighing in on the side of one party over another.

Goldberg Kohn principal Matthew Organ echoed the idea of the DOJ working to protect its interest in the FCA, noting that it works carefully to ensure that the FCA is not “artificially limited.”

“They want to make sure they can exercise the full scope of the False Claims Act,” he said.

The Escobar decision upheld the use of the “implied certification” doctrine — when a company knowingly certifies that it is in compliance with all relevant regulations, laws and contractual clauses, but isn’t, even if those requirements are not explicit conditions of payment — as a basis for FCA liability, but also held that such certifications must be “material” to a government payment decision.

“That was, at least in some people’s view … a groundbreaking decision,” Goldberg Kohn principal David Chizewer said. “By anybody’s view, it has certainly caused the courts to at least reevaluate a lot of the pending cases that are currently awaiting a decision.”

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