Disclosure Dilemma: Is Disclosure to the Government Enough to Invoke the False Claims Act’s Public Disclosure Bar?

Source: Policy & Medicine

By Daniel Naydenov

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The federal government has a significant financial interest in the $3 trillion dollar health care industry. Due to limited administrative resources, the government’s biggest allies in the fight against health care fraud are individual whistleblowers who are able to file lawsuits under the False Claims Act’s qui tam provisions and share in the recovery. The Act contains a public disclosure bar to prevent parasitic suits by opportunistic whistleblowers. This Note analyzes two contrasting decisions from the Sixth and Seventh Circuits interpreting who qualifies as the “public.” In both cases, the court was asked to determine whether a health care provider’s self-disclosure of misconduct to the federal government was sufficiently public to bar future suits. Ultimately, this Note argues that the Seventh Circuit’s interpretation is more persuasive and closer to striking the proper balance between incentivizing whistleblowers and inhibiting opportunism.… Read the rest

Lack of Legal Duty to Fill Vacancies on the United States Export-Import Bank’s Board of Directors May Destroy Ex-Im Bank

Sources: Ex-Im Bank; CNN

By Michal Nowicki

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This Note examines whether the President of the United States has a statutory duty to nominate candidates to fill vacancies on the United States Export-Import Bank’s five-person Board of Directors. With only two of the five seats occupied, Ex-Im Bank’s Board of Directors cannot currently approve the financing of large export credit transactions, because at least three board members must be present to establish quorum for conducting official business. As a result, the Bank’s power is severely limited. Although this Note argues that President Trump is not legally obligated to fill Ex-Im Bank board vacancies, it offers an argument the Bank’s supporters can use to persuade President Trump to restore the agency to its full potential.… Read the rest