Host Jonathan Porter welcomes Husch Blackwell’s Lorinda Holloway to explore settlements in the context of False Claims Act (FCA) litigation. Jonathan and Lorinda discuss the differences between FCA settlements and those typically seen in commercial litigation. They explore what is meant by “covered conduct” and why broad releases are rarely seen in FCA settlements. The presence of whistleblowers, or relators, is another distinguishing feature of FCA litigation, adding another layer of complexity to FCA settlement negotiations, See more +

Host Jonathan Porter welcomes Husch Blackwell’s Lorinda Holloway to explore settlements in the context of False Claims Act (FCA) litigation. Jonathan and Lorinda discuss the differences between FCA settlements and those typically seen in commercial litigation. They explore what is meant by “covered conduct” and why broad releases are rarely seen in FCA settlements. The presence of whistleblowers, or relators, is another distinguishing feature of FCA litigation, adding another layer of complexity to FCA settlement negotiations, especially around attorneys’ fees which the FCA allows whistleblowers to demand as part of a recovery.

Jonathan and Lorinda also take on the crucial issue of how FCA settlement discussions need to account for the defendant’s ongoing business objectives and its ability to continue doing business with the government. The Department of Justice often has a tight focus on FCA litigation, leaving parallel administrative issues or disputes to its agency clients; however, defendants should seek to gain as much clarity as possible on their ability to operate as a contractor and make those inquiries part of the larger settlement negotiation, especially as it might impact any admission of liability as part of the settlement.

Finally, Jonathan and Lorinda discuss the concept of pocket judgments, also called spring-loaded judgments, which often involves defendants that have an inability to pay the judgment in a bullet payment. Pocket judgments usually involve something akin to an installment plan, and typically, defendants also enter into a consent judgment for a higher sum of money that can be invoked by the government if the defendant fails to abide by the installment plan. See less -