How a Marine Fisheries Dispute Opened an FCA Can of Worms

Host Jonathan Porter welcomes Husch Blackwell litigator Tanner Cook to discuss how the U.S. Supreme Court’s Loper Bright decision from earlier this year could have a major influence on False Claims Act litigation. The Court’s decision in Loper Bright ended decades of so-called Chevron deference, which held that courts had to defer to administrative agencies’ interpretation of the law when a statute was silent or ambiguous on a particular issue. Instead, Loper Bright affirms the idea that courts reviewing agency actions “decide all relevant questions of law.” This change could have a powerful impact on FCA litigation, as private businesses more easily will be able to mount legal challenges to agencies’ interpretations of ambiguous statutory language.Jonathan and Tanner focus the discussion on Loper Bright’s implications on the concept of materiality, a key statutory component for determining FCA liability. “Material” in the FCA context describes factors that impact the government’s payment decisions, and much hangs on this concept when whistleblowers allege FCA-related fraud. After all, not all regulatory violations are material.Jonathan and Tanner discuss recent litigation in which defendants have employed Loper Bright to challenge an agency’s interpretive rules—that is, an agency’s interpretation of law, rather than its substantive rulemaking tied to an explicit statutory delegation of power—under the theory that rules lacking the force of law are ipso facto nonmaterial. Given the significant percentage of FCA cases premised on obscure interpretative rules, Loper Bright changes the scope of legal analysis and could assist defendants in limiting FCA liability. 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.Tanner Cook BiographyFull BiographyBased in St, Louis, Tanner is a member of Husch Blackwell’s Commercial Litigation group and focuses on consumer class actions, antitrust litigation, and multidistrict litigation. Tanner frequently takes the lead in drafting critical pretrial briefs, including dispositive motions and evidentiary challenges. In addition to his commercial litigation practice, Tanner regularly assists on white collar defense matters, especially in the False Claims Act context. Tanner has significant experience defending companies from qui tam whistleblower suits at every stage of the litigation process, combining his deep substantive knowledge of the law with creative defense strategies. Tanner served as law clerk at the U.S. District Court, Eastern District of Missouri, for Judge Sarah E. Pitlyk.Additional ResourcesTanner Cook, “Loper Bright and Materiality Under the False Claims Act,” October 31, 2024False Claims Act Insights, Episode 9, “If Everything Matters, Nothing Does: Parsing Materiality in FCA Disputes,” August 12, 2024Gregg N. Sofer and Joseph S. Diedrich, “Landmark Supreme Court Decisions Restrain Federal Administrative Agency Power,” June 28, 2024