Top 10 Takeaways on FCA Enforcement from the FBA’s 2026 Qui Tam Conference

The Federal Bar Association’s 2026 Qui Tam Conference featured two sets of remarks from Deputy Assistant Attorney General of the U.S. Department of Justice’s (DOJ) Commercial Litigation Branch, Brenna Jenny (DAAG Jenny). In her keynote address, DAAG Jenny offered insights into the current administration’s False Claims Act (FCA) enforcement philosophy and priorities. DAAG Jenny also addressed “Illegal DEI” FCA enforcement during a panel discussion and offered the Trump administration’s view of discrimination as a basis for potential FCA liability. Various other current and former DOJ officials offered insights on wide-ranging topics. Below, we summarize the top 10 highlights from the Qui Tam Conference.

1. DOJ views the FCA as a “flexible” and adaptable tool to advance policy objectives.

The purpose and scope of the FCA was a common theme. DAAG Jenny described the FCA as a “flexible tool” while defending some of the Trump administration’s novel applications of the FCA in non-traditional areas, including the use of the FCA to combat discrimination. She emphasized that new applications of the FCA are not invalid simply because they are new. 

Questions remain whether new enforcement areas—like the Civil Rights Fraud Initiative—bear a sufficient connection to the FCA’s purpose of protecting the public fisc. Another open question is whether the newly announced National Fraud Enforcement Division within DOJ will also pursue FCA violations.

2. FCA enforcement spans traditional, emerging, and novel areas.

The current FCA enforcement landscape falls roughly into three categories:

• The traditional centers of gravity for FCA enforcement are still health care and procurement fraud. Within health care, DOJ’s three main enforcement areas remain managed care, drug pricing, and substandard or medically unnecessary care.
• Emerging priorities include trade and customs enforcement and cybersecurity fraud.
• Novel enforcement areas include discrimination and gender-affirming care, but DAAG Jenny’s comments did not directly address the latter, perhaps due to the government’s recent setbacks in this area (previously discussed here).

3. Record results from 2025, and data mining, are the “new normal.”

FCA enforcement set records in 2025, both in terms of new cases and recoveries. DAAG Jenny noted that DOJ issued over 1,000 Civil Investigative Demands (CIDs) annually in each of the last four years, and qui taterms of new cases and recoveries. DAAG Jm complaints increased by 33 percent last year. 480 qui tam cases have already been filed this year. DAAG Jenny described this heightened level of FCA enforcement as the “new normal.” She attributed the increased activity level in part to data mining activities by both DOJ and relators, and to a rise in cases focused on novel enforcement areas, such as discrimination/DEI practices.

4. The constitutional twilight zone continues.

While FCA practitioners await the Eleventh Circuit’s forthcoming decision in United States ex rel. Zafirov v. Florida Medical Associates, No. 24-13581 (11th Cir.), the constitutionality of the FCA remains a hot topic. As we have previously noted (here, here, and here), Justice Thomas’ observation that the FCA exists in a “constitutional twilight zone”—where enforcement of federal law has been outsourced to private individuals—has given rise to a renewed focus on the constitutional issue. 

Panelists agreed there is a strong likelihood the Supreme Court will take up the issue in the appropriate case. Is Zafirov that case? The answer to that question may depend on the scope of the Eleventh Circuit’s (forthcoming) decision. Below, the district court’s decision was limited to the Appointments Clause issue. On appeal, however, the Eleventh Circuit may address both the Appointments and Take Care and Vesting Clauses, which may provide a clean vehicle for further review by the Supreme Court.

Continued constitutional scrutiny carries a number of implications. Notably, in Zafirov, the government is defending the Appointments Clause challenge on narrow grounds, conceding that the Appointments Clause may apply to private parties exercising executive authority, while emphasizing the deep historical roots of the qui tam device. For practitioners, defendants are increasingly raising Article II challenges in appropriate cases and jurisdictions. Meanwhile, the whistleblower bar is now considering the constitutional issue as part of their early case evaluations. 

5. The Administration is focused on discrimination-based FCA enforcement.

DAAG Jenny’s remarks during a panel on “Illegal DEI” provided perhaps the most fulsome explanation of the Trump administration’s view of discrimination as a basis for FCA liability.

DOJ is giving “expedited priority treatment” to qui tam cases involving alleged discrimination by federal contractors, consistent with the May 2025 Bondi Memo, which advocated for “vigorous enforcement” of the FCA against recipients of federal funds who “knowingly violate civil rights laws.” However, DAAG Jenny recognized that “promoting diversity is not necessarily unlawful.”

Pending discrimination investigations involve companies that allegedly: 

• created or tracked demographic hiring goals;
• tied compensation or financial incentives for certain employees to achieving workforce demographic targets; or
• required employees to develop their own demographic targets or objectives, affecting their compensation. 

She called out “problematic” situations where (i) employers provide recruiting or mentoring opportunities based on a protected characteristic, and (ii) companies implement so-called “diverse slate” policies.

DOJ’s discrimination-based FCA investigations remain in the investigation stage. Whether liability will be established in those cases remains unclear, but the government’s policy pronouncements and investigatory actions seem to have had the intended deterrent effect on entities subject to FCA enforcement.

6. A decade after Escobar, materiality questions remain.

In 2016, the Supreme Court decided Universal Health Services, Inc. v. United States ex rel. Escobar, characterizing the FCA’s materiality requirement as “rigorous.” DAAG Jenny’s comments on materiality in the context of discrimination-based FCA claims were thus particularly interesting. She discussed an example where a relator was required by their employer to meet certain diversity goals and compensation “hung in the balance” as a result. While material to the relator, is that requirement material to the government’s decision to pay a federal contract or claim? 

The Supreme Court’s recent decision in Kousisis v. United States may shed light on the outer limits of the FCA’s materiality requirement. Although Kousisis was a wire fraud case (not an FCA case), the government’s briefing and the opinion itself characterize Escobar as an “essence of the bargain standard” for materiality, requiring something akin to a “but-for” standard. This situation may prompt defendants to argue that an allegedly false statement may not satisfy the FCA’s materiality requirement where that representation does not go to the essence of the bargain or did not induce the government to pay a claim.

7. Post-Regeneron, relators are pleading dual track causation theories.

Last year in United States v. Regeneron Pharmaceuticals, Inc., the First Circuit joined the emerging majority view that FCA claims based upon violations of the Anti-Kickback Statute (AKS) are subject to a “but-for” causation standard. As we noted last year, the Regeneron case may lead to renewed interest in the false certification theory of FCA liability. 

Given the many panelists who discussed false certification liability, that prediction apparently is proving to be correct. Notably, members of the relator bar noted that they have increasingly “dual pleaded” causation in AKS-based FCA claims—i.e., alleging “but-for” causation to satisfy Regeneron while also pleading an express or implied false certification theory as an alternative.

8. Guidance documents are deemphasized but not irrelevant.

DAAG Jenny reaffirmed that Civil Frauds will not use noncompliance with regulatory guidance as a basis for FCA liability. Rather, DOJ’s analysis of FCA liability is based on violations of statutes and regulations, not guidance documents. It remains to be seen whether DOJ will maintain this commitment in cases where a defendant’s alleged conduct was inconsistent with or violative of a particular guidance document. And in cases where a defendant’s conduct is consistent with guidance documents, the defendant may still argue relevance to intent/scienter, even if such guidance authority lacks the force of law.

9. Declination considerations and dismissals. 

On the topic of declination, DAAG Jenny reiterated that merit or lack thereof is always the most persuasive issue for the government. Another persuasive consideration is a lack of harm to taxpayers or agencies. By contrast, DAAG Jenny noted that she does not find persuasive arguments (i) based on industry practice (“everyone’s doing it”); or (ii) that allegations about conduct from many years ago are “stale.” Specifically addressing “stale” conduct, DAAG Jenny noted that investigations often take years to develop, and the backstop on old conduct is the statute of limitations.

10. Dismissals will now be considered in the ordinary course.

Section 3730(c)(2)(A) of the FCA provides that the government “may dismiss” a qui tam action over relator’s objection. DAAG Jenny noted that DOJ sought the dismissal of 25 qui tam cases in 2025, which is a notable uptick from years prior. DAAG Jenny stated that DOJ exercises its (c)(2)(A) dismissal authority “sparingly, but not reluctantly.” 

Importantly, DAAG Jenny also outlined a process change. Previously, (c)(2)(A) dismissals were considered on an ad hoc basis, but dismissal will now be considered as a matter of course when DOJ decides whether to intervene or decline a case. Given DAAG Jenny’s recognition that investigations often take years to develop, perhaps DOJ will begin considering (c)(2)(A) dismissals early on, before the point of declination after a multi-year investigation.

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