Immersed in Knowledge and Passion: A Young Lawyer’s First Federal Bar Association Qui Tam Conference

Contributed by Sofia J. Calabrese

Recently, I had the privilege of attending the Federal Bar Association’s annual Qui Tam Conference for the first time.  As a young lawyer, I appreciated having the opportunity to gain exposure to some of the leading voices in the practice. The conference had a rich perspective, gathering relator and defense attorneys, alongside government lawyers, to gain invaluable insight to the qui tam landscape.

Upon arrival in Washington, DC, it was clear to me that the average attendee of this conference was incredibly knowledgeable and experienced in FCA practice. Yet as a “rookie,” I never felt out of place. In fact, the atmosphere was welcoming and inclusive. The passion of the attendees, speakers, and moderators was clear not only from their sheer knowledge but also the excitement in discussing the subject, and patience in answering the many questions I had. In discussing the program with a fellow attendee, he likened the vast quality and quantity of information like “drinking water from a fire hose.” The topics addressed in the twelve panels over the two days covered so many issues and practice tips beneficial to attorneys on both sides of the bar, regardless of the stage of your career.

The conference kicked off with remarks by Edward Kang, Managing Member of premier sponsor Kang Haggerty (full disclosure – my boss). I am fortunate enough to be part of a law firm that devotes itself in this way and is willing to invest in and develop its whistleblower attorneys.

The panels began with “FCA 2023 Year in Review,” providing a comprehensive overview of decisions occurring in the past year impacting various elements of a claim such as materiality and scienter, as well as cases impacting broader concerns such as the Antikickback Statute and the DOJ Civil Cyber-Fraud Initiative. This panel was especially relevant given the DOJ’s announcement of nearly $2.7 billion in False Claims Act recoveries in 2023.

The second panel, “Insider, Competitor, Analyst, Doe: Who’s Your Whistleblower” leaned on the unique opportunity to have relator’s counsel, defense counsel, and DOJ representatives all weigh in on their preferences and practice tips to highlight who the ideal whistleblower would be, and what qualities and competencies a whistleblower may have that aid in a successful claim. This panel led to an incredibly informative Q&A where the divisive issue of LLC relators was addressed.

Panel three was titled “Perilous or Persuasive? Ethical Decision Points and Strategic Approaches for Making Your Case to the Government.” This panel was incredibly helpful as a young practitioner, as it walked through decisions that need to be made in a situation where a client is involved in a governmental investigation. Ethics are at the cornerstone of every decision any legal practitioner makes, and the insight and pointers from the experienced individuals on this panel not only highlighted the heightened importance of ethics as relator’s counsel, but emphasized the ethical considerations that defense counsel must consider as well. As my background is in corporate litigation, this opportunity to meet with defense counsel face to face and receive their perspective on the practice left me with skills that are likely to help not only predict obstacles a relator may face but also to better coordinate and cooperate with defense counsel.

Next up was “The Government’s Impact on Declined vs. Intervened FCA Cases.” A declination by the government is not necessarily a reflection of the merits of the case, and therefore, some firms such as Kang Haggerty proceed with the action independently. In fact, 16% of recoveries in 2023 came from declined cases.[1] As this panel elaborated, proceeding on a declined case still requires interaction with the DOJ. The panelists engaged in a candid conversation on what the moderator, Amy Kossak, Senior Trial Counsel with the DOJ Civil Fraud Section and speaker Steven Sharobem, Assistant U.S. Attorney for the District of Massachusetts, (in their personal opinions of course) would prefer this interaction to look like. Nowhere else would there be an opportunity to hear these preferences from multiple members of the DOJ. Interaction with DOJ can make or break a case and is vital given the FCA statute’s intended cooperation between relators, their counsel, and the DOJ in qui tam actions. What would normally take years of practice to isolate was communicated to me clearly over the course of one panel.

The fifth panel, “Damages in False Claims Act Proceedings,” addressed one of the main considerations underlying any successful qui tam case, the calculation of damages. The wide range of behavior that may give rise to liability under the False Claims Act means that there is no rule for determining damages, rather it is case-specific. The opportunity to hear from individuals who have worked through this difficulty throughout their careers, and formed these calculations in dozens of cases, provided a map that I did not know I needed. The panel began with an assessment of damages under the Anti-Kickback statute. The discussion then turned to negotiating versus litigating damages and challenging damages. The availability of damages to whistleblowers is one of the novel aspects of the False Claims Act. Without providing damages to whistleblowers, the government, by way of the taxpayers, would never have recovered the approximately 75 billion dollars of recoveries that have occurred since 1986 when the statute was enacted. The strategies and clarity of this panel provided a great insight into some of the situations I may see unfold as my career develops. This panel left me with the tools to see these challenges in advance and tackle them as they come.

“The Government’s Role in FCA Appeals” asked four big questions; 1) in what ways does the government think differently about appeals versus cases in the district court; 2) what considerations matter most to the government when a case is on appeal; 3) what do the government’s appellate processes look like; and 4) how private parties (relators and defendants) can helpfully participate in those processes. This panel was again essential as a Kang Haggerty associate, as the firm has excelled in declined litigation. Here, I was afforded the opportunity to hear from the individuals who would be making this decision and gain background on what this process looks like on the other side of the government screen. While this decision process may be mysterious to relator’s counsel at times, the conference allowed me to peek behind the screen for a moment.

The next panel, “The U.S. Attorney’s Office Perspective: A Chat with USAO Civil Chiefs” highlights just how beneficial this conference was. Here the panelists included Neeli Ben-David, Civil Chief of the U.S. Attorney’s Office in the Northern District of Georgia, Patricia Fitzgerald, Civil Chief of the U.S. Attorney’s Office for the Northern District of Ohio, Randy Harwell, Civil Chief of the U.S. Attorney’s Office for the Middle District of Florida, Mary Murrane, Deputy U.S. Attorney for the U.S. Attorney’s Office for the District of Massachusetts, and Amanda Rocque, Deputy Civil Chief of the U.S. Attorney’s Office for the District of Colorado. The panelists described what FCA practice looks like in each office, what types of pre-filing conversations the office has with relators, the role relators play in their pre-intervention investigations, each office’s interaction with the Civil Frauds Section, interactions with the criminal division, and with other U.S. Attorney’s offices. Each USAO is going to have different preferences, abilities, and procedures in the handling of the FCA cases. The opportunity to hear first-hand from members of these offices how cases proceed in each location was a rare opportunity to gather information directly from the perspective of DOJ members that will allow my firm to provide the most well-rounded representation possible.

The eighth program addressed “The Agency Perspective: The Role of Inspectors General in FCA Investigations.” This panel outlined the organizational structure of the Office of the Inspector General, and addressed the role the office plays in several technical aspects of FCA practice including investigations, settlements, corporate integrity agreements, as well as suspension and debarment.  The panel then moved on to voluntary self-disclosure and cooperation credit. Though these topics typically are of concern to defense counsel, this was the most informative overview of the topic I had ever been presented with. As was the theme of many panels in this conference, hearing the perspective and considerations on the “other side of the v” clarified not only what steps I can take to better cooperate with defense counsel, but also educated me on damages offsets I may not have considered.

The ninth panel covered tax fraud and state AG enforcement. The panel consisted of Karl Racine, a partner at Hogan Lovells, Brian Schwalb, Attorney General for the District of Columbia, Shelly Martin, False Claims Unit Director at the Maryland Office of the Attorney General, and Teige Carroll, Taxpayer Protection Bureau Chief at the New York Office of the Attorney General. These speakers offered the opportunity to hear how the IRS and FBI play a role in each of their offices, as well as barriers in passing these statutory sources of Attorney General authority.

The final two panels were “Taking FCA cases to Trial – With and Without the Government” and “Ethics in Parallel Proceedings.” Both programs offered valuable practice tips gleaned from the experiences of the panelists. Their insights provided helpful advice for a young practitioner.

As a young lawyer entering this new field of law, the finish line can at times seem distant. The False Claims Act is such a unique body of law with untold intricacies in its practice and statutory interpretation. I cannot understate the passion and excitement the individuals and panelists had in addressing the topic, and the true dedication to the reduction in fraud upon the federal government. To any other young associate in qui tam practice, I strongly encourage you to attend next year. The insights and education gained over 48 hours in the nation’s capital was invaluable, leaving me excited and energized.

Sofia J. Calabrese is an associate in the Philadelphia, Penn., office of business litigation boutique Kang Haggerty LLC. She is an active member of the Young Lawyers Divisions of the Philadelphia Bar Association and The Anti-Fraud Coalition and Taxpayers Against Fraud. She can be reached at scalabrese@kanghaggerty.com.

[1] DOJ “Fraud Statistics – Overview” (Feb. 22, 2024)