The FCA Panel at the 2026 ABA White Collar Crime Institute in San Diego made one thing clear: the False Claims Act is in a constant flux, shaped by constitutional tensions, policy debates, and a rapidly politicizing enforcement landscape.
The FCA Panel brought together an unusually strong lineup featuring Michael Granston, Giselle Joffre, Jacqueline Romero, and Aviva Gilbert, with Preston Pugh moderating. Drawing on experience across DOJ leadership, U.S. Attorney offices, and defense-side practice, the Panelists offered a candid look at where FCA enforcement is headed. The throughline: an assertive government posture meeting a judiciary that is increasingly skeptical of overreach.
First Things First: Are The FCA’s Qui Tam Provisions Constitutional?
If there was one moment that captivated people’s attention, it was the Panel’s discussion of the growing constitutional challenge to the FCA’s qui tam provisions, the mechanism that allows private whistleblowers to sue on the government’s behalf and pocket a share of any recovery. This issue has the capacity to change how the FCA functions at the most basic level.
At the center of this conversation was the Zafirov litigation, which has emerged as the most likely vehicle to carry this question to the Supreme Court. The question is deceptively straightforward: can a private citizen (appointed by no one, removable by no one) exercise the kind of executive enforcement power that Article II reserves for officers of the United States? A Florida district court became the first in the country to answer that question with a resounding no, holding that qui tam relators are de facto “officers” whose self-appointment and unchecked litigation authority run afoul of the Appointments Clause.
Our firm recently covered the Eleventh Circuit’s oral argument in Zafirov in depth[1] and the bench was anything but passive. Judges pressed all sides on where the constitutional lines are drawn, whether historical practice settles the question, and whether the Supreme Court’s dicta in Polansky (particularly Justice Clarence Thomas’s pointed dissent) have already signaled the decision.
The practical stakes are enormous. The qui tam model is the engine behind the vast majority of FCA cases. If the Supreme Court meaningfully curtails or dismantles it, the enforcement landscape will fundamentally transform overnight. Defense strategies that today focus on procedural maneuvering would pivot toward structural constitutional challenges. The government would lose its most powerful force multiplier.
What made the Panel’s discussion notable was not just the substance, but the tone. This is no longer a fringe argument floated by outlier defendants. It is going mainstream. Companies should be thinking now about what their FCA exposure looks like in a world where relator-driven cases decline or disappear entirely. And in pending cases, defense counsel should be preserving these arguments today.
Materiality: The Defense Bar’s Quietly Growing Advantage
If constitutional challenges are the FCA’s most dramatic front, materiality is its most consequential. The Panel devoted significant attention to how this element may be quietly shifting in defendants’ favor.
The question courts are increasingly willing to ask is direct: did false claim actually induce the government to act? If no, the fact that some representation was technically false may not be enough to sustain an FCA claim. The Panel discussed the Supreme Court’s decision in Kousisis, which was not an FCA case, but a criminal fraud case, yet still supports giving defendants more room to push for dismissal in cases where the alleged misstatement was real but its real-world impact was minimal or immaterial.
The implications ripple through every phase of litigation. On the defense side, the “immateriality” narrative needs to be built early. Discovery strategy should zero in on what the government actually knew, and when, and whether it kept paying despite that knowledge. And summary judgment (a typically difficult hurdle in FCA cases) becomes a more realistic tool with the right set of facts.
None of this makes materiality a magic wand. The standard remains fact-specific, and courts are not uniformly receptive. But the trajectory is clear: the strongest FCA defenses in 2026 are being built on what actually happened in the real world, rather than on parsing regulatory text.
New Theories, New Territory, and a Judiciary Pushing Back
The FCA’s enforcement zones are expanding. Healthcare fraud remains the biggest enforcement area, but Panelists catalogued a striking range of emerging, and often political, subjects now in play, including: customs and tariff fraud, cybersecurity compliance failures, liability tied to executive orders (e.g., DEI issues), and cases targeting gender-affirming care.
That last category generated pointed discussion from the Panel. Early court decisions in this space have been notably skeptical. Several subpoenas have been quashed outright, and judges have shown little appetite for allowing the FCA to serve as a proxy for resolving clinical or scientific disputes that the medical and policy communities themselves have not settled. The concern, voiced from the bench in multiple venues, is that the statute was designed to combat fraud, not to adjudicate contested questions of medical necessity or regulatory philosophy.
That judicial resistance carries a message worth internalizing: the FCA is powerful, but it is not boundless. The government’s decision to pursue a novel theory does not, by itself, guarantee success.
The Political Dimension of It All
Throughout their discussion, the Panelists highlighted that FCA enforcement is increasingly a function of political priorities, not just legal ones. The Panelists laid out how DOJ resource allocation, case selection, and enforcement emphasis are being shaped by executive orders, cultural flashpoints, and policy agendas, including, notably, scrutiny of DEI practices and other areas where the current administration has staked out distinct positions. Healthcare enforcement is simultaneously entering a more data-driven, systematic phase, with heightened DOJ-HHS coordination that makes investigations harder to anticipate using traditional compliance frameworks.
Practically, this means a compliance program calibrated only to statutes and regulations is no longer adequate. Staying ahead of FCA risk today requires reading the political landscape as carefully as the Federal Register. What constitutes actionable fraud can shift with an administration’s priorities and that volatility, as the Panel made clear, cuts in multiple directions simultaneously.
What to Do With All of This
The Panel left practitioners with a clear, if sobering, directive: FCA risk is no longer a departmental concern. It is enterprise-wide.
For companies, that means taking a hard look at every place where federal funds touch the business—not just billing and claims, but cybersecurity certifications, trade representations, ESG-adjacent disclosures, supply chain compliance, and the businesses’ use of DEI. Any certification made to the federal government deserves the same scrutiny as a financial statement, because the government increasingly treats them the same.
For counsel, it means driving an early narrative internally with stakeholders and externally with DOJ. Materiality and intent defenses are won or lost in how the story is framed and that framing begins at the investigation stage.
And for everyone operating in this space, it means accepting that tracking enforcement requires more than monitoring DOJ press releases. Understanding why cases are being brought (including the policy logic, the political context, the enforcement philosophy of the moment) is increasingly the most reliable early warning system available.
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