False Claims Cases with David Pivnick of McGuireWoods LLP 5-29-25
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What is the significance of the False Claims Act?
This is Scott Becker with the Becker Private Equity and Business Podcast. We're thrilled to have recently passed 7 million downloads and been ranked at the top of the Apple Business News Rank Exist Month. And this is largely due to great listeners and great guests. One of our great guests is David Pivnik, who's a brilliant leader, lawyer, business strategist, and a lot more. We talk to David often about leadership issues, business issues. He made his name as a top litigator handling white collar claims, often for private equity funds, but a fascinating, fascinating person. David, let me start with this. Talk to us for a second about, so what are the most interesting issues that you're following today? What's top of mind for you? What are you keeping your eyes on?
Sure, absolutely, Scott. Appreciate you having me on. You know, Business-wise, day-to-day, as you alluded to, I spend a lot of my time and energy defending False Claims Act cases, representing a wide range of providers, health systems, managed care insurers, as well as private equity funds. I often am focused on issues in that space.
What ongoing legal challenges are associated with the False Claims Act?
One of them that is particularly notable to me right now is an 11th Circuit appeal in what's known as the Zafirop case. That is focusing on whether or not the False Claims Act and specifically its key TAM provisions allowing whistleblowers to bring lawsuits on behalf of the government is constitutional. There's been many challenges to the constitutionality of the statute, but it hasn't been determined by the Supreme Court or really resolved with any finality. A couple of years ago in 2023, Justice Thomas issued a dissenting opinion in a Supreme Court case where he noted that he thought it would be interesting, that there might be a challenge to the constitutionality and whether whistleblowers could proceed with claims. And I think that invited a lot of litigation.
How could recent court cases affect whistleblower protections?
And Zafirov is a Middle District of Florida case where the judge, who's a President Trump appointee from his first term, granted judgment for the defendant and found that the Ketan provisions were not constitutional. And that case has since been appealed. And the briefing is now completed, as of about a month ago, before the 11th Circuit. There's been amicus briefs that were filed from a variety of constituents, including the Department of Justice and other government officials, as well as amicus briefs on the other side. So both sides have briefed this very extensively. And it'll be interesting, with the 11th Circuit weighing in on constitutionality. And I expect fully that the issue will make its way to the Supreme Court and likely get taken up by the Supreme Court. And that would have a massive impact on False Blames Act litigation generally and specifically on whistleblower litigation. So that's something that the briefing was completed in the first five months, first four months really of this year.
And it's certainly something I've been focused on and looking into it and will have a big impact on work that I'm participating in and representing clients in going forward. And then I always monitor what DOJ is focused on and where some of the key litigation efforts are going as well.
What are the constitutional concerns regarding the False Claims Act?
Let me ask you about that. The false claims case has been around since the Civil War. What's the take on that? Can that possibly be ruled unconstitutional? Can we possibly not have key TM cases? Is that a possibility? Or would that get the Supreme Court and at some point they'd be like, no, of course we could do that. What's your take on that? Is there a good basis for not being constitutional?
I think there is. I think that the general concept here is under the Constitution, based on the Appointments Clause and Care Clause, There are certain authorities that are limited to the executive and where people have to be appointed to represent the government appropriately. In this instance, the key to supervision sort of circumvent that and had whistleblowers with no basis or standing other than self-election, self-determining that they're going to file a lawsuit, coming in and taking over that. And while the government has the ability to investigate and intervene,
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Chapters
7 chapters
1
What is the significance of the False Claims Act?
0:00–1:19
2
What ongoing legal challenges are associated with the False Claims Act?
1:19–2:06
3
How could recent court cases affect whistleblower protections?
2:06–3:24
4
What are the constitutional concerns regarding the False Claims Act?
3:24–5:06
5
How does the False Claims Act impact healthcare litigation?
5:06–6:41
6
What are the potential implications of the Zafirop case?
6:41–7:46
7
How does the False Claims Act relate to regulatory compliance?
7:46–12:17
Speakers
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