FERA’s Expansion of the Government’s CID Authority
In May 2009, President Obama signed the Fraud Enforcement and Recovery Act (“FERA”), which strengthened and expanded the scope of conduct subject to the False Claims Act as well as fortified the government’s ability to investigate a prosecute whistleblower claims.
Among FERA’s many refinements to the False Claims Act is the expansion of the government’s Civil Investigative Demand (“CID”) authority. The CID authority was added to the False Claims Act in 1986. In principal, the inclusion of a CID authority in 1986 created a significant weapon in the government’s arsenal to fight fraud and investigate whistleblower cases, as it empowered the government to request documents, submit interrogatories and depose witnesses. However, as a practical matter, prior to FERA the government seldom availed itself of the CID authority because the statute required the CID to be issued and signed by the Attorney general.
The False Claims Act as amended by FERA permits CIDs to be issued by the Attorney General or his or her designee. Another significant change to the CID authority for whistleblowers and their counsel is that FERA has facilitated the sharing of information gathered by the government pursuant to a CID. Now, information gathered pursuant to a CID can be shared with a relator and relator’s counsel if “it is necessary as part of any false claims act investigation.”
Since FERA, Kenney & McCafferty has seen a notable uptick in the government’s use of the CID authority. The new and expanded CID authority has undoubtedly enhanced both the ability of the government to prosecute fraud successfully as well as accentuated the opportunity for relators and their counsel to play an instrumental role in the investigatory process.
Tags: authority, CID, False Claims Act, FCA, FERA, Obama
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