This Note analyzes Congress's most recent attempts to recover fraudulently secured government funds through its modifications of the False Claims Act ("FCA"), and concludes that an amendment to the Act is necessary. To begin, Part II.A. presents a brief historical tracking of the FCA, including the original FCA of 1863, and the critical amendments through 1986. Part II.B. explores relevant interpretations by the courts that established the landscape of false claims litigation prior to the Fraud Enforcement and Recovery Act of 2009 ("FERA"), including Allison Engine v. United States ex. rel. Sanders, in which the United States Supreme Court reversed a presentment requirement and articulated an intent requirement for defendant liability. Part II.C. details the recent, though significant, alterations to the FCA, including FERA's effective overruling of Allison Engine and removal of any intent requirement. This Note will briefly explain the Patient Protection and Affordable Care Act of 2010, its erosion of the "Public Disclosure Bar," and its narrow definition of "publicly disclosed" information. Part III.A. highlights current examples that demonstrate the FCA's inevitable shift toward a negligence standard if the Act is not further clarified. Part III.B. will show the serious repercussions that necessarily follow such a broadened scope of liability, such as an increased cost of doing business with the government and contractors, and several policy implications. Finally, Part III.C. will explain that Congress must adopt the approach of several state versions of the False Claims Act, and expressly eliminate negligence and mistake as bases for liability under the federal False Claims Act.
Note, The Civil False Claims Act and its Unreasonably Broad Scope of Liability: The Need for Real "Clarifications" Following the Fraud Enforcement and Recovery Act of 2009, 60 Clev. St. L. Rev. 533 (2012)