The government and qui tam plaintiffs are increasingly employing statistical sampling in False Claims Act cases, particularly in cases where addressing and analyzing large numbers of allegedly false claims poses substantial challenges to judicial resources. The health care, financial services, and government procurement sectors face greater risk of qui tam litigation involving thousands of allegedly false claims, and it is in these types of cases that plaintiffs are aggressively arguing for the use of statistical sampling.

Statistical sampling and extrapolation involves identifying a representative sample of claims and using that sample to draw inferences and make conclusions about the larger pool of claims. The use of statistical extrapolation is not new, and in certain types of cases, such as administrative agency actions, governing statutes specifically authorize its use. Nevertheless, the FCA is silent with respect to the use and appropriateness of statistical sampling.

Originally published in Law360 on January 19, 2016.