46 Pages Posted: 24 Apr 2015 Last revised: 9 Dec 2015
Date Written: February 1, 2015
Whistleblowers are helping recover over $5 billion a year of fraud against the federal government, but reliance on whistleblowers and prosecutorial discretion raises problems when fraud allegations stem from undisclosed regulatory violations. Courts have created a series of opaque, formalistic “false certification” doctrines that provide little principled guidance as to why, for example, knowingly naming the wrong physician supervisor does not constitute Medicare fraud under the False Claims Act, but naming the wrong physician provider does constitute fraud. I suggest that the principle of fair competition can distinguish between regulatory violations that should result in civil liability and those better handled within a preexisting regulatory regime. This clear, principled rule for liability can aid development of a fair, competitive marketplace not dominated by entities improperly profiting from regulatory violations.
Keywords: FCA, False Claims Act, Competition, False Certification, implied certification
JEL Classification: K20
Suggested Citation: Suggested Citation
Kwok, David Y, A Fair Competition Theory of the Civil False Claims Act (February 1, 2015). 94 Nebraska Law Review 355 (2015); U of Houston Law Center No. 2015-A-11. Available at SSRN: https://ssrn.com/abstract=2597656