Skyrocketing FCA Penalties Ripe For Constitutional Challenges

The U.S. Department of Justice recently announced dramatically higher civil penalties under the False Claims Act, pursuant to authorization in the Bipartisan Budget Act of 2015. The announced increases make the FCA’s already draconian penalties even more so, particularly in cases involving individual claims for small dollar amounts. To date, constitutional objections to outsized FCA judgments have experienced little success. But the higher penalty ranges may change the calculus of how courts view constitutional challenges to FCA civil penalties, creating opportunity for defendants finally to gain traction in arguing for constitutional limits to FCA penalties.