False Claims Act Litigation: Proof, Defenses, Individual Liability, and More

A live 90-minute CLE webinar with interactive Q&A

Wednesday, September 27, 2017 (in 5 days)
1:00pm-2:30pm EDT, 10:00am-11:30am PDT

This CLE webinar will discuss litigation tactics for defending False Claims Act (FCA) cases, including individual liability and the impact of the Yates Memo on FCA liability and reverse false claims. The program will look at recent trends in FCA litigation and recent case law developments.


False Claims Act (FCA) litigation increases in number and scope every year. In 2016, the DOJ recovered more than $4.7 billion in settlements and judgments in FCA cases and there were more than 700 new whistleblower suits filed under the FCA. The DOJ’s recent enforcement efforts have also continued to demonstrate its new focus on individual liability pursuant to the 2015 Yates Memo.

The Supreme Court resolved a circuit split in June 2016 when it issued a unanimous decision in Universal Health Servs. Inc. v. United States ex rel. Escobar, which confirmed that implied certification can be a basis for liability under the FCA. The court also, however, underscored the need for rigorous enforcement of the FCA’s materiality and scienter requirements. Over the past year, lower courts have begun to apply the principles of liability espoused in Escobar and already are coming to different conclusions about how and when a defendant can be liable under the FCA.

Listen as our panel of litigators outlines tactics for defending FCA cases. The panel will discuss recent key developments in FCA cases and how they may affect potential defenses, including individual liability and the impact of the Yates Memo on FCA liability and the developing case law under Escobar. The program will look at recent trends in FCA litigation and recent case law developments in these and other areas.


  1. Recent FCA litigation trends
  2. FCA claims
    1. Elements
    2. Statute of limitations
    3. Scope
    4. Scienter
    5. Materiality: Escobar and the implied certification theory
    6. Burden of proof
    7. Defenses
    8. Damages
  3. Individual liability: Impact of Yates Memo on FCA liability
  4. Reverse false claims


The panel will review these and other key issues:

  • What has been the impact of the Yates Memo on individual liability in the context of FCA litigation?
  • How are courts interpreting the implied certification theory post-Escobar?
  • What are the recent developments impacting FCA “reverse false claims” enforcement?


Stuart F. Delery, Partner
Gibson Dunn & Crutcher, Washington, D.C.

Mr. Delery's practice focuses on representing corporations and individuals in high-stakes litigation and investigations that involve the federal government across the spectrum of regulatory litigation and enforcement. Before joining the firm, he was the Acting Associate Attorney General of the United States, from 2014-2016, during which he oversaw the civil and criminal work of five of DOJ's litigating divisions -- Antitrust, Civil, Civil Rights, Environment and Natural Resources, and Tax -- as well as components supporting state and local law enforcement, among others. As a member of DOJ's senior management team, he assisted the Attorney General and Deputy Attorney General in formulating and implementing DOJ policies. Previously, he was the Assistant Attorney General for the Civil Division where he supervised the DOJ's enforcement efforts under the False Claims Act, FIRREA and the Food, Drug and Cosmetic Act.

Jonathan M. Phillips
Gibson Dunn & Crutcher, Washington, D.C.

Mr. Phillips focuses his practice on FDA and health care compliance, enforcement, and litigation, as well as other white collar enforcement matters and related litigation. He defends government contractors and their affiliates in government investigations under the False Claims Act and in related whistleblower litigation. He has substantial experience representing clients in investigations regarding alleged off-label promotion and Anti-Kickback Statute violations, as well as other regulatory issues. He previously worked as a Trial Attorney in the Civil Division, Fraud Section of the U.S. Department of Justice, where he investigated and prosecuted allegations of fraud against the United States under the False Claims Act and related statutes.

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