False Claims Act Priorities in 2021

On February 17, 2021, Department of Justice (“DOJ”) Acting Assistant Attorney General Brian M. Boynton identified top priorities for the DOJ under the False Claims Act. Among the areas to watch, the two top priorities identified were (1) pandemic-related fraud and (2) opioid enforcement. While this should come as little surprise, these areas of emphasis appear to have bipartisan support as continued points of emphasis for DOJ moving forward.

In 2018, former Attorney General Sessions emphasized opioid enforcement during his tenure, allocating substantial resources and prosecutors to opioid-related prosecutions. In addition to the Appalachian Regional Prescription Opioid Strike Force, each U.S. Attorney’s office named a prosecutor as an “Opioid Coordinator” to focus on criminal and civil opioid enforcement. In Georgia, the U.S. Attorney’s offices have been no exception with respect to making opioid enforcement a priority.

Traditionally, the focus on these efforts has been criminal prosecution. Acting Assistant Attorney General Boynton’s remarks illustrate that DOJ wants to broaden its enforcement portfolio by emphasizing civil tools to be brought to bear on opioid enforcement. The Northern District of Georgia, for example, has brought several opioid-related prosecutions, including several against prescribers, and used alternative methods to raise awareness, such as issuance of warning letters to outlier prescribers. Also of note, throughout 2019 and 2020, the Southern District of Georgia has aggressively used both criminal and civil enforcement tools pursue those pharmacies and physicians it believes has violated either the False Claims Act or for civil penalties under the Controlled Substances Act. Similar efforts have occurred elsewhere, in joint cases brought by Washington-based prosecutors and local U.S. Attorney’s offices. As the new administration’s transition takes shape, one area to watch in 2021 will be the ramped up emphasis of civil enforcement actions against providers – either in parallel proceedings or as standalone investigations.

As COVID-19 pandemic worsened and the federal government began to launch assistance programs, the DOJ significantly ramped up its efforts to detect and prosecute pandemic-related fraud. Similar to its approach with opioid enforcement, U.S. Attorneys’ Offices designated an COVID-19 Coordinator to manage and lead fraud enforcement efforts at the U.S. Attorney level. Significant resources from DOJ’s Consumer Protection Branch and Criminal Division have also been assigned to investigate and prosecute fraud. Thus far, most enforcement efforts have been to criminally prosecute those who have allegedly misused a pandemic-related assistance program, including the Small Business Administration (“SBA”) Paycheck Protection Program and Economic Injury Disaster Loans. A number of civil actions, including both U.S. Attorney’s offices and Main Justice components have started to emerge.

In 2021, we anticipate that criminal prosecutions relating to SBA fraud will increase in volume and will remain the focus of DOJ’s activity with respect to pandemic aid programs. That said, based on the Acting Assistant Attorney General’s recent statements, it appears as if civil enforcement will also be an area to watch.

The attorneys at Griffin Durham Tanner & Clarkson are former federal prosecutors who represent whistleblowers and those under investigation in connection with DOJ investigations.  If you need assistance with such a matter, please contact us today.