Statistical Sampling & Liability under the False Claims Act: Understanding the Current Trend


CLE Credits earned: 2 GEN

The Department of Justice recovered more than $3.7B in 2017 in settlements and judgments from civil cases brought under the False Claims Act (FCA). Overall recoveries since 1986, when Congress substantially strengthened the FCA, now amount to more than $56B. As these recoveries make clear, the FCA is a vital tool in the arsenal both of the Government and lawyers for whistleblowers to attack what they allege to be fraud on the Government. As plaintiffs, they continue to bring sophisticated claims involving, for instance, Medicare and Medicaid and government contracts, and thus have turned to statistical sampling as a way to help them prove these large-scale cases. As plaintiffs, they routinely argue that the use of statistical evidence to prove liability under the statute should be allowed to avoid difficult and prolonged litigation. By contrast, defendants in these actions have asserted that the FCA requires claim-by-claim analysis and that sampling is an impermissible shortcut to establishing liability.

The debate over sampling in FCA cases continues to rage. Several recent court decisions have tackled the issue of sampling directly and have reached different conclusions. Thus, the battle over statistical evidence—how to harness its possibilities and how to defend against them—will continue. This program will consider the history and use of statistical sampling both in FCA cases and in other civil contexts to understand the many opportunities and challenges presented by this evidence to the future of FCA litigation.

Key topics to be discussed:

•   Statistical Sampling Theories, Methodologies, and Historic Uses in Civil Cases
•   Current Trends in Statistical Sampling in FCA Cases
•   Recent court decisions
•   Best Practices, including Daubert issues

Date / Time: November 1, 2018

•   2:00 pm – 4:00 pm Eastern
•   1:00 pm – 3:00 pm Central
•   12:00 pm – 2:00 pm Mountain
•   11:00 am – 1:00 pm Pacific

Choose a format:

•   Live Video Broadcast/Re-Broadcast: Watch Program “live” in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for “live” CLE credit.
•   On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 7 business days after the original recording date and are view-able for up to one year.


Original Broadcast Date: June 21, 2018

Matthew Benedetto, Esq. is a counsel in the Los Angeles Office of WilmerHale. His practice focuses on complex civil litigation and government investigations. Mr. Benedetto has extensive experience representing pharmaceutical companies, healthcare companies, and financial institutions in both federal and state False Claims Act actions. In the healthcare space, he has unique experience litigating California’s Insurance Frauds Prevention Act, a qui tam statute in the Insurance Code, including argument before the California Court of Appeal. He also has experience representing qui tam whistleblowers and before joining WilmerHale was a member of a trial team in a four-week federal jury trial involving FCA allegations against a major insurance company.

In his pro bono practice, Mr. Benedetto obtained in 2015 a rare federal jury verdict in favor of his client, a California state prisoner, in a First Amendment retaliation case brought against state correctional officers. He currently represents Theranos, the blood testing diagnostics company, in a number of actions across the country.

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Section I. Introduction to statistical sampling and its importance to large-scale cases

Section II. History of sampling to prove liability in other civil contexts

Section III. Sampling to prove FCA liability

Section IV. Daubert issues

Section V. Best practices