Regulatory & Administrative Law
Government regulation has a profound impact on every private and public entity in the United States and is therefore a crucial factor in strategic planning. Regulatory and enforcement actions by federal and state agencies can impose significant costs, foreclose opportunities, and at times threaten an entity’s viability. The correct response to troubling government regulatory actions will vary. Sometimes the best approach involves further proceedings before the relevant agency, or seeking assistance from the executive branch, or legislative bodies, including Congress. Other times litigation is necessary. In either case, a thorough understanding of the principles governing agency conduct is essential. Our Regulatory & Administrative Law team is well-versed in these principles, with an exceptional capacity to represent clients in this area.
Several members of our team have high-level government experience and prior service in top legal, policy and enforcement positions at state and federal agencies. We also work closely with subject matter experts from our industry teams, particularly in highly regulated sectors such as energy, manufacturing, and health care. When an agency’s actions warrant scrutiny by state or federal legislators, our government relations subsidiary, CivicPoint, provides sophisticated capabilities. If litigation is necessary, our clients have recourse to knowledgeable and capable trial lawyers, including former AUSAs with extensive experience in this area.
Thomas E. Wheeler, II
A wealth of government experience.
Our Regulatory & Administrative Law team is led by Tom Wheeler, whose prior government service includes stints as an Assistant Attorney General at the U.S. Department of Justice, a Senior Advisor to the Secretary of Education, counselor to two Indiana Governors, and advisor to Congressmen, Senators, and many other elected officials.
Areas of Focus
We have the capabilities to provide guidance and support to entities as they navigate complex and byzantine government requirements and increasingly overbroad and intrusive investigations by federal agencies in an unpredictable regulatory environment. With a wealth of prior government service, our attorneys and legislative advisors continually monitor the regulatory horizon. We can assist entities in staying compliant, avoiding government inquiries, and—if necessary—managing investigations and legal disputes.
Should an investigation begin, we will help you respond appropriately. Because of our experience in regulatory matters, we are often able to resolve issues quickly and prevent them from becoming formal enforcement actions. When enforcement does result, we provide strategic defense, both at the agency level and in court.
The False Claims Act (FCA) and its various state and municipal equivalents are extremely powerful tools available to both the Department of Justice (DOJ), state attorney generals and purported whistleblowers seeking to file lawsuits on the government’s behalf and obtain a percentage of what they recover. With its treble damages and per-claim penalty provisions, the FCA is a potent weapon. Moreover, the consequences of being found liable in an FCA case can be catastrophic, resulting in suspension or debarment from government contracts or exclusion from participation in government programs.
While claims against government contractors by states and the federal government remain a significant area of exposure, the rapid growth of these “whistleblower” or qui tam actions presents a tremendous challenge for individuals and entities doing business with the federal government. Almost 70 percent of all FCA cases filed since the 1986 amendments permitted these types of cases, were brought by whistleblowers, and in 2017 alone, qui tam litigants filed 669 suits, resulting in the DOJ recovering approximately $3.7 billion. This nearly doubled the annual number from just five years earlier and demonstrates the continuing increase in interest in FCA litigation by the plaintiffs’ bar.
Because of the nature of the financial exposure (treble damages and penalties) as well as other criminal and civil penalties and sanctions, it is important for individuals and entities facing such claims to look for legal counsel with an established track record of experience and success – counsel who can work with DOJ and other agencies to end investigations or decline intervention, as well as effectively resolve matters, litigate cases to conclusion, and manage parallel administrative actions.
Frost Brown Todd represents companies, their boards and management, and individuals in all aspects of FCA matters, including internal investigations, transactional due diligence, the implementation of remedial measures and compliance programs, and the defense of government investigations, enforcement actions, and criminal and civil proceedings. Our FCA team consists of former DOJ lawyers who served at all levels within the Justice Department, including U.S. Attorneys who pair that experience with a deep familiarity of those industries particularly subject to FCA claims and qui tam actions, such as financial services, health care, life sciences, government contracting, and insurance.
We have developed strong working relationships with the career DOJ lawyers responsible for FCA matters due to our substantial experience with them. As a result, we have had considerable success representing clients during FCA investigations and frequently convince the DOJ not to intervene in whistleblower actions, not to separately file or pursue FCA actions, and to settle on favorable terms rather than litigate.
Frost Brown Todd attorneys have extensive experience in defending our clients in claims brought under a wide variety of state and federal anti-kickback statutes, including the Federal Anti-Kickback Act and the Stark Law. As a result of these statutes, businesses or all types, from those in the construction and health care industries to insurance and financial institutions, have come under increased scrutiny with respect to their relationships with other businesses. From prime/sub-contractor situations and hospital/physician referral relationships to mortgage originator/lender interactions, matters that seem to be ordinary business transactions at first blush can become, under the lens of Stark or the AKA, heavily scrutinized and potentially problematic transactions.
We assist clients in analyzing proposed transactions to minimize risks under these statutes. Government agencies at all levels have stepped up their enforcement efforts, and the penalties for violations can be severe. In addition to assisting clients through all stages of compliance and investigation, we also have significant experience in defending Stark and KA claims in litigation.
Our team has a wealth of experience representing organizations of all sizes in False Claims Act, Qui Tam, Stark, Anti-Kickback Act and related claims with respect to energy, commercial insurance, construction, government contracting, banking and home mortgage, medical billing and the health care industries, among others. For example,
- Defense of a large mortgage lending company with respect to FCA claims based on alleged FHA loan and RESPA violations.
- Defense of a major health insurance provider in DOJ FCA investigation in Medicare billing practices.
- Successful defense of insurance related entities swept up in the Wells Fargo FCA investigation regarding allegations of improper lending practices.
- Compliance related to and defense of FCA claims for international construction company.
- Investigation of FCA claims, and compliance drafting for general contractor related to HUD projects.
- Investigation of and compliance policy drafting for national electrical subcontractor related to allegations of improper bidding and false claims.
- Compliance drafting for and defense of government contractors in several industries, including medical, construction, insurance and banking.
- Defense of healthcare consultants in one of the nation’s largest Stark Law and FCA cases.
- Defense representation of Fortune 50 manufacturer in one of the nation’s largest RICO and FCA claims.
- Internal control review and compliance for international EPC contractor.
- Investigations and Compliance support related to labor hour and material cost submissions by cost reimbursable federal contractors.
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