To Survive FCA Actions, Small Cos. Must Take Offensive Steps

Olshan Litigation and White Collar & Government Investigations partner Derrelle Janey published an article in Law360 entitled “To Survive FCA Actions, Small Cos. Must Take Offensive Steps.” In the article, Derrelle discusses the escalating risk that False Claims Act enforcement poses to lower-middle-market companies and the proactive, offensive strategies these organizations should take to protect themselves before an FCA complaint. “For lower-middle-market companies and smaller businesses, a civil action with a 7- or 8-figure liability claim can be the death knell of the business and, often, a financial disaster for the business owners,” Derrelle said. The DOJ is not the only party allowed to pursue an FCA claim. Should the DOJ decline, “whistleblowers” can undertake the action on behalf of the government and receive a portion of the damages recovered, an incentive that sparked a record-setting number of cases, from 980 in 2024 to 1,297 in fiscal year 2025. “For lower-middle-market companies and smaller businesses, the time to prepare is before the complaint arrives, not after,” Derrelle notes. “Investing in robust recordkeeping, routine compliance audits, and identifying experienced white-collar counsel now can mean the difference between a defensible position and an existential crisis.”