In this article, Ian Herbert, Bradley Markano, and Eva Kahan* analyze Justice Clarence Thomas's concurrence in Kousisis v. United States and its impact on False Claims Act (FCA) claims, particularly those that may be brought under the Trump administration's Civil Rights Fraud Initiative (CRFI). Drawing on his 2016 Escobar opinion, Justice Thomas argued that diversity-related misrepresentations are unlikely to meet the FCA's materiality standard unless they directly affect the core purpose of a contract. He emphasized that even certifications declaring diversity terms as material may not suffice if the alleged violations are minor or unrelated to performance. The authors note that this reasoning could significantly limit the government's ability to bring FCA claims based on DEI policies.
 
*Summer associate