Abstract
FERA’s retroactivity provision should be interpreted narrowly, applying the new materiality requirement only to cases where fraudulent requests for payment were pending on or after the retroactivity date. This interpretation is in accord with the FCA’s statutory definition of “claim,” the use of the term “claim” in the context of the entire retroactivity provision, and the legislative history of the retroactivity provision. Moreover, this interpretation would allow courts to avoid the potential constitutional implications of interpreting the retroactivity provision broadly. Should courts interpret the retroactivity provision broadly, FERA’s expanded liability standard would apply to all lawsuits pending on or after the retroactivity date. Because Congress intended to impose punishment when it enacted both the FCA and FERA, and because the FCA’s treble damages would have a punitive purpose or effect, retroactive application of FERA’s new materiality standard would violate the Ex Post Facto Clause. Although either interpretation of the retroactivity provision would likely violate the Ex Post Facto Clause, courts can avoid confronting the constitutional question in cases in which no fraudulent requests for payment were pending on or after the retroactivity date.
Recommended Citation
Love, Cynthia
(2012)
"The Fraud Enforcement and Recovery Act of 2009 and the Expansion of Liability Under the False Claims Act,"
Utah Law Review: Vol. 2012:
No.
2, Article 13.
Available at:
https://dc.law.utah.edu/ulr/vol2012/iss2/13