Are the FCA’s Qui Tam Provisions Unconstitutional? One Federal Judge Says “Yes”

Host Jonathan Porter is joined by Husch Blackwell partners Jody Rudman and Lorinda Holloway to discuss the implications of a September 2024 federal court decision from the Middle District of Florida that strikes down the False Claims Act’s qui tam provisions as unconstitutional. Our conversation begins with a brief overview of the lawsuit, U.S. ex rel. Zafirov v. Florida Medical Associates, LLC, and the constitutional questions it raises. We examine the case law history of similarly situated cases in other trial and circuit courts and review the prevailing jurisprudence of the constitutional law at the heart of the recent decision. Will Zafirov be hugely consequential, or is it a mere constitutional curiosity? Our discussion explores the likely path forward for the case and how it could impact False Claims Act enforcement. When constitutional challenges of this scale emerge, they can appear to be jolting or sudden, but the groundwork for this case had been in the works for some time, and our discussion reveals why and how Zafirov has brought the FCA’s qui tam provisions under a constitutional spotlight.Jonathan Porter BiographyFull BiographyJonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law.Jody Rudman BiographyFull BiographyJody serves as the Office Managing Partner for Husch Blackwell's Austin office and leads the firm's White Collar, Internal Investigations & Compliance practice group. She also spearheads the firm’s False Claims Act working group. She has assisted clients across a wide range of industries with investigations, negotiations, mediations, pretrial matters, grand jury proceedings, civil lawsuits, criminal indictments, jury trials, sentencings and appeals. She has tried dozens of jury and bench trials in the federal and state courts, argued before the U.S. Court of Appeals for the Fifth Circuit, and appeared before the U.S. Supreme Court.Prior to entering private practice, Jody served as a federal prosecutor for the Northern District of Texas and was appointed by the Texas Attorney General to spearhead high-profile charitable trust and healthcare litigation matters for the State of Texas.Lorinda Holloway BiographyFull BiographyBased in Austin, Texas, Lorinda is a member of the Husch Blackwell’s Healthcare, Life Sciences and Education industry team and counsels clients on matters concerning government investigations and disputes. For more than 25 years, she has advised and represented clients in and out of the courtroom with a particular focus on the healthcare industry, including False Claims Act, Texas Medicaid Fraud Prevention Act, and qui tam related investigations and lawsuits, audits, and in business disputes in state and federal court. Her experience in healthcare has also led to the education field, including a focus on the legal challenges faced in academic medicine.