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Roger Lewis, who focuses his practice on False Claims Act litigation, is quoted in a Law360 article entitled "The Hottest FCA Cases & Trends to Watch in 2023."

The article, published Jan. 5, 2023, reports that the False Claims Act realm will be extra active in 2023 as the U.S. Supreme Court delivers at least one FCA opinion - and perhaps two or even three - in headliner cases during a year in which attorneys are also eyeing a new circuit split and emerging enforcement frontiers.

To take stock of key FCA themes in the year ahead, Law360 asked Mr. Lewis and others what they'll be watching most closely in litigation and investigations involving fraud against taxpayer-funded programs. The lawyers pointed to several Supreme Court dockets, circuit court divisions involving kickback cases, and signs of stronger scrutiny for Medicare Advantage insurers and government contractors with digital troves of sensitive health care information.

The hottest topics Law360 summarizes are:

  • 'Seminal Legal Issues' in DOJ Dismissal Debate
  • 'Creative Lawyering' Defense in High Court Spotlight
  • Kickback Clarity Sought at Supreme Court
  • AKS Ruling Raises Prospect of 'Powerful Defenses'
  • Cybersecurity, Medicare Advantage Seen as Prime Targets

Goldberg Kohn Principal Lewis commented on the topics of "Creative Lawyering Defense in High Court Spotlight" and "Cybersecurity, Medicare Advantage Seen as Prime Targets."

'Creative Lawyering' Defense in High Court Spotlight

This section of the article discusses a FCA tempest on the Supreme Court's radar that could dramatically affect efforts to prove that fraud occurred knowingly, as required to create liability.

At issue is whether the law covers regulatory violations based on "objectively reasonable" interpretations of compliance obligations, and whether it matters if accused violators never even believed that faulty interpretations were correct.

Four pending petitions are asking those questions, and on Jan. 6, 2023, the justices will discuss two of those petitions, including one filed in Schutte v. SuperValu Inc. That case is the most advanced of the quartet, and its quest for high court review has won influential allies, including Taxpayers Against Fraud, the U.S. Solicitor General and Sen. Chuck Grassley, R-Iowa, who helped to write the modern FCA.

Advocates of review have fretted that granting FCA immunity to "objectively reasonable" readings of regulations would open a supersized loophole for defense counsel. The DOJ, for example, has warned of a scenario in which "a defendant can actually realize that its actions are likely illegal, ignore warnings from attorneys, industry experts, or employees, and yet avoid all consequences through creative lawyering after the fact."

Other observers see the defense as common sense. SuperValu, for example, used an opposition brief to discuss "unclear and complex Medicare and Medicaid provisions, which lower courts have described as among the 'most completely impenetrable texts within human experience.'"

Mr. Lewis summed up the situation this way: "At stake is the biggest question for 2023: whether a defendant can ever be liable under the False Claims Act if its regulated conduct, though wrongful, was objectively reasonable."

Cybersecurity, Medicare Advantage Seen as Prime Targets

In this section, Mr. Lewis said that "Fraud in the Medicare Advantage program will continue to be a big-ticket, high-impact focus of FCA activity in 2023," adding that the program's size will probably keep FCA cases "in the headlines for years to come."

The privately administered Medicare Advantage program offers plenty of FCA fodder: Enrollment has ballooned to almost 30 million beneficiaries - roughly half of the total Medicare population - and spending last year exceeded $400 billion, according to the Kaiser Family Foundation.

The DOJ has sued some of the program's leading insurance plans, including Cigna Corp. and Anthem Inc., and has generally accused companies of exaggerating patient illnesses in order to extract more money from the government.