The ABA's 2026 False Claims Act Mock Trial Institute, held in New Orleans this year and sold out, once again offered a bevy of lessons, information, and insight. As always, the FCA Mock Trial Institute provided a valuable opportunity for members of the government, relator, and defense bars to network and talk cheerfully outside the occasionally adverse litigation atmosphere. Sheppard Mullin was again well represented among faculty and attendees by five attorneys from its experienced FCA team and hosted a well attended Thursday evening reception at Compare Lapin.
The States Are Rising
The reduction of personnel at both Main Justice and in U.S. Attorney Offices, along with a focus by the current administration on non-traditional FCA issues such as DEI and gender-affirming care, has reduced federal resources available to investigate and litigate healthcare and defense/government contracting FCA cases. Going forward, expect to see increased state AG involvement in FCA cases, especially healthcare cases. Sara Vann and Candice Deisher from the Georgia and Virginia Attorneys General Offices, respectively, provided a masterclass on NAMFCU and state AG work generally during "The NAMFCU and HHS-OIG Round Table." Other members of the faculty, particularly during the "FCA's Role in the American Justice System" panel (which included a former U.S. Attorney, the most recent Deputy Assistant Attorney General, Civil Division, and the President and CEO of The Anti-Fraud Coalition), discussed recent increases in state activity and the current opportunity for further increases. State AG offices have always been well represented at the Institute, but this year undoubtedly set a record with well over a dozen attendees plus faculty.
Causation, Causation, Causation
To reformulate a classic line from The Brady Bunch, an increasingly important part of FCA cases is causation, causation, causation. Not only is causation the focus of several recent appeals court decisions, but the mock jury struggled with causation. The mock fact pattern at this Institute was a worthless services case in which a nursing home allegedly failed to care for several patients resulting in false claims for per diem payments. One issue for several of the jurors was the lack of evidence in the mock trial tying to the failure to care to claims. Some jurors wondered how the nursing staff would know a lack of care would result in false billing (especially as there was no allegation that the patient care records were themselves false) and/or how the billing department would know care was not provided.
Jurors and The False Claims Act
The centerpiece of the Institute is watching a live stream of the jurors following the mock trial. FCA trials are relatively rare, although increasing in number recently, and it is impossible to observe jury deliberations. Conducting a mock jury exercise is time-consuming and expensive. The Institute offers the benefits of a mock jury exercise at a fraction of the cost. Prior to deliberations, nearly all attendees and faculty thought the jury would quickly decide in favor of the government and relator with a couple of people wondering if deliberations would last more than 10-15 minutes. We were wrong; very, very wrong.
As noted above, some jurors struggled with causation. A majority of the jurors, for similar reasons, found that the government/relator had not proven the claims were submitted "knowingly." Several jurors also had concerns about the relator (the former director of nursing in the mock fact pattern). There were concerns about his failure to blow the whistle during his three years at the facility and about his financial incentives if there was a verdict in his/the government's favor. This latter concern is unique to FCA cases.
Just as important as the issues themselves was the fact that the jurors struggled with them. As prior editions of the Institute also revealed and as experienced jurists and trial lawyers know, jurors almost always approach deliberations with the seriousness and sense of duty that our system of justice requires of its citizens. It was reassuring to once again watch the jurors take their time and seriously deliberate and discuss each of the elements of a FCA claim.
The U.S. District Court for the Eastern District of Louisiana and its staff hosted this year's Institute, with proceedings held in Judge Papillion's courtroom. Judge Susie Morgan facilitated the Institute's use of the Courthouse and presided over the entire mock trial.
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