State Enforcement and Causation Challenges Highlight Trends in False Claims Act Litigation
The American Bar Association’s (ABA) 2026 False Claims Act (FCA) Mock Trial Institute, recently held in New Orleans, provided valuable insights into the evolving landscape of FCA litigation. the sold-out event brought together government attorneys, relators (whistleblowers), and defense counsel, fostering a collaborative environment for discussing key developments and challenges within this complex area of law. This year’s Institute underscored a notable shift towards increased state involvement in FCA cases and highlighted the critical importance of establishing causation in successful claims.
Growing State Attorney General Involvement
A important trend identified at the Institute is the increasing role of State Attorneys General (AGs) in pursuing FCA cases, particularly in the healthcare sector. This rise is largely attributed to reduced personnel and resources at the federal level, with both the Department of Justice and U.S. Attorney’s Offices facing constraints. Simultaneously, the current administration’s focus has broadened to include non-conventional FCA issues, such as those related to Diversity, Equity, and Inclusion (DEI) initiatives and gender-affirming care, potentially diverting resources from traditional healthcare and government contracting fraud investigations.
Presentations by Sara Vann of the Georgia Attorney General’s Office and candice Deisher of the Virginia Attorney General’s Office showcased the capabilities and growing sophistication of state-level FCA enforcement. faculty discussions, including contributions from a former U.S. Attorney, the Deputy Assistant Attorney General for the Civil Division, and the President & CEO of The Anti-Fraud Coalition, confirmed a demonstrable increase in state AG activity and the potential for further expansion. The Institute itself saw record attendance from state AG offices,signaling a clear commitment to proactive enforcement.
The Critical element of Causation
Beyond the shift in enforcement bodies, the Institute emphasized the increasing importance of proving causation in FCA cases. Recent appellate court decisions have placed a renewed focus on this element, and the mock trial exercise vividly demonstrated the challenges jurors face in understanding and applying it.
The mock trial scenario involved allegations of inadequate patient care at a nursing home leading to false claims for per diem payments. Jurors struggled to connect the alleged failures in care directly to the submission of false claims, questioning how a lack of care would translate into billing inaccuracies, especially in the absence of falsified patient records. This difficulty underscores the need for plaintiffs to present compelling evidence establishing a clear causal link between the underlying conduct and the resulting false claims.
juror Perspectives and the “Knowing” Submission Requirement
The Institute’s centerpiece - a live observation of mock jury deliberations – offered invaluable insights into how jurors approach FCA cases.Despite initial expectations of a swift verdict in favor of the government and relator, deliberations proved lengthy and complex.
Jurors not only grappled with causation but also questioned whether the government and relator had adequately proven the claims were submitted ”knowingly.” Furthermore, the credibility of the relator – a former director of nursing who waited three years to report the alleged fraud and stood to benefit financially from a favorable verdict – was a significant concern for several jurors.This highlights the inherent skepticism jurors may have towards whistleblowers and the importance of establishing their motives and credibility.
The mock trial reaffirmed the fundamental principle that jurors take their civic duty seriously, approaching deliberations with diligence and a commitment to thoroughly evaluating the evidence.
The ABA’s 2026 FCA Mock Trial Institute provided a crucial forum for analyzing these emerging trends and refining litigation strategies. As state enforcement continues to rise and courts scrutinize causation requirements, a robust and well-supported evidentiary foundation will be paramount for success in FCA cases.
Keywords: False Claims Act, FCA, Whistleblower, State Attorney General, Healthcare Fraud, Government Contracting Fraud, Causation, Jury Deliberation, DEI, Gender-affirming care, Mock Trial, ABA, Fraud Enforcement.