The debate over statistical sampling in False Claims Act litigation continues to rage. With the growing number of lawsuits brought under the federal FCA, the dispute over the use of statistical evidence sparks intense interest among litigators. In the FCA context, courts have generally recognized statistical sampling as an acceptable method for calculating damages where liability is uncontested or previously determined.
One of the current battlegrounds in cases involving fraud on the government is whether and when the government or relators may use statistical sampling to prove liability or damages. The government and qui tam relators attempt to use statistical sampling and extrapolation to prove liability and damages in FCA cases. In fact, the government and relators consider sampling to be an indispensable tool in their efforts to combat increasingly large-scale fraud. By contrast, defendants in these actions have asserted that the FCA requires claim-by-claim analysis and assert that statistical sampling and extrapolation methods deprive them of the ability to offer a defense as to each alleged false claim on an individualized basis. The resolution of this issue has dramatic consequences for many FCA cases and investigations.
This year’s Qui Tam Conference held on February 28 and March 1 in Washington, D.C. will examine the legal arguments underlying statistical sampling. Esteemed panelists will analyze how statistical sampling relates to the FCA’s liability requirements and address the associated burden shifting and due process concerns. The panel will discuss and describe statistical sampling methodologies, current trends in statistical sampling in FCA cases, recent court decisions, and best practices for leveraging sampling as well as combating it. Register today for the Federal Bar Association’s Qui Tam Conference at www.fedbar.org/quitam19.
The government and relators often argue that without the ability to extrapolate results from a smaller representative sample of claims, the largest frauds will go unpunished because it is impractical to try a case involving thousands of individual treatment decisions. As modern FCA litigation evolves in a climate where federal programs become more and more intertwined, the government and relators have sought to use a mathematical process known as “statistical sampling” or “extrapolation” to facilitate the efficient resolution of large cases.
“There’ll be a background about the legal landscape, talking about what cases have said. Where have courts allowed [sampling] for damages? Where have courts allowed it for liability? Where have courts not allowed it for either of those things?” explains Ashley W. Hardin, moderator of the panel, “Statistical Sampling and Algorithms.”
Ashley W. Hardin (Partner, Williams & Connolly LLP) will be joined by acclaimed panelists Benjamin C. Mizer (Partner, Jones Day), Andy Mao (Deputy Director, Fraud Section, Civil Division, U.S. Department of Justice), and Tim Renjilian (Senior Managing Director, FTI Consulting, Inc.) to evaluate the history and use of statistical sampling in FCA cases to understand the many opportunities and challenges presented by this evidence in FCA litigation.
The panelists will examine how courts are treating the issue and offer best practices for addressing sampling issues as the law on the use of sampling in FCA cases continues to change. Attorneys for the government, relators, and healthcare companies should consider how sampling could be used in different kinds of FCA cases, especially those involving liability and issues of medical judgment. The panel will also analyze how different courts have treated statistical sampling and extrapolation and offer best practices for leveraging sampling or combating it in the determination of liability and damages.
The two-day Qui Tam Conference will tackle some of the hottest topics in FCA litigation, with panels featuring attorneys from both sides of the aisle, along with government prosecutors, agency representatives, and subject-matter experts. Join us on February 28 and March 1 at the Qui Tam Conference.
Click here to hear more from moderator Ashley W. Hardin on what to expect from this panel on statistical sampling under the FCA.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.