FCA Qui Notes
October 1, 2018

Qui Notes Methodology: Pay Attention to the Blogger Behind the Curtain

Qui Notes: Unlocking the False Claims Act

When it comes to posting real-time False Claims Act (FCA) stats, there's a lot more magic than simply clicking our heels while saying "There's no statute like FCA." There's a fair bit of work that goes on behind the curtain so that we can bring you what we believe to be current and accurate real-time statistics on FCA recoveries throughout the year. We thought our readers might like to know a little bit about why we count FCA recoveries, how we arrive at the numbers we display, and what the limitations of our data are.

Why do it? At the end of every government fiscal year (September 30), the Department of Justice (DOJ) closes the FCA books and tallies up the winnings in the form of settlement recoveries, judicial judgments, or jury awards. Using these numbers, a savvy FCA practitioner can draw conclusions about enforcement priorities and emerging trends that might be relevant to his or her clients. These figures are released, typically toward the end of the calendar year, with a breakdown by industry. But what DOJ doesn't do is publish these figures in real time, or break the numbers down into individual cases. Sure, DOJ might highlight its blockbuster settlements or high-profile victories, but the discerning reader does not want to wait until December to figure out what's up in the FCA for that year. With our data, FCA practitioners can spot trends sooner and stay informed throughout the year.

How do we do it? The source of the data we report is the government itself. Every day we scour DOJ's press releases to look for news of FCA recoveries. When we spot one, we read about the case, validate the data as best we can, and record it. What we are looking for is news of any civil federal FCA recovery, whether through settlement, verdict, or judgment. We also supplement our own data with DOJ's annual compilation and other data accessible through FOIA when available—but of course, those sources are not available to us in real time.

What can't we do? The data we report is limited by what data is publicly available (that is, what the DOJ or relators choose to publicize or the media chooses to report). This means we may miss recoveries if no press release is issued (this might happen either as a term of a settlement agreement, or perhaps because the recovery was too small to warrant a press release by DOJ). Also keep in mind that we may read a recovery one way, while DOJ records it in a different way in their end-of-year stats. For example, while we always attempt to apportion recoveries correctly as between state and federal causes of action, it is not always possible to do based only on publicly available information. In cases where the division is unclear, we typically will capture the entire amount as a federal FCA recovery, but it is sometimes a judgment call depending on the complexity of the case. And finally, there may be simple human error, but we promise to do the best we can to get it right.

When DOJ releases its figures in December, we'll use those to grade our papers (although the DOJ has been known to fudge its own numbers here-and-there). If any reader spots an error or graciously may want to make us aware of a missed recovery, please just let us know so that we can make sure our stats are as accurate and current as possible.

© Arnold & Porter Kaye Scholer LLP 2018 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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