The Preclusive Effects of FCA Settlement Agreements

Bloomberg BNA

07.18.2017

In this article, Adam Feinberg and Jonathan Kossak* discuss the preclusive effects of settlements in False Claims Act (FCA) cases. "Application of res judicata in an FCA case subsequent to a settlement in an earlier FCA case involving the same defendant usually depends on whether the same cause of action is at issue in the two cases. That analysis can be more favorable to an FCA defendant than first meets the eye," Feinberg and Kossak wrote. Following a discussion of key considerations in analyzing the scope of an FCA settlement and its res judicata effects, including the fraudulent scheme alleged, the allegedly false claims at issue, and the approach to res judicata in the relevant judicial jurisdiction, the authors conclude that "these considerations are critical to an FCA defendant's ability to resolve a matter with confidence that any allegations of fraud with respect to the claims at issue are truly put to rest once the ink dries on the settlement agreement."

*Former Miller & Chevalier attorney