Tyson Provides Road Map For Use Of Sampling In FCA Cases

The circumstances under which statistical sampling can be used in order to establish liability in False Claims Act cases remains a controversial issue. Defendants argue that sampling results in a “trial by formula” that can result in ruinous liability based on evidence relating to a relatively small number of claims, while the U.S. Department of Justice and relators’ counsel argue that statistical sampling is an accepted form of evidence, and that limiting its use in FCA cases would have the perverse effect of immunizing the largest frauds from the full scope of liability.