Just a Bit Late, DOJ Increases FCA Penalties for 2020 (and 2019)

The Federal Civil Penalties Inflation Adjustment Act of 1990 requires that agencies adjust civil penalties, including under the False Claims Act, for inflation on an annual basis. FCA watchers thus were puzzled by DOJ’s failure to update its FCA penalties at all last year. Although DOJ has historically been slower on the draw than other agencies, it had never missed an entire year. Last week, more than halfway through FY2020, DOJ finally issued FCA penalty updates. 85 Fed. 37,004-01 (June 19, 2020).

For FCA penalties assessed after June 19, 2020, the minimum per-violation penalty is $11,665 and the maximum is $23,331. As it has in the past, DOJ also purports to retroactively increase the penalty amount for all penalties assessed between January 29, 2018, and June 19, 2020. For penalties assessed during that time, the minimum penalty is now $11,181 and the maximum penalty is $22,363. While we at Qui Notes believe there might be a valid challenge to retroactively increasing penalties in this manner, given the relatively modest increase, no defendant has yet appeared willing to pick that fight.

© Arnold & Porter Kaye Scholer LLP 2020 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.