Retroactivity and the Fraud Enforcement and Recovery Act of 2009

This Article resolves confusion over the scope of the Fraud Enforcement and Recovery Act (FERA), which amends the False Claims Act (FCA), to clarify that it covers fraud against the taxpayers even where committed by and against other government contractors and subcontractors. I focus on a controversial retroactivity clause applying FERA's expanded liability language to pre-enactment conduct. Ambiguity has led to inconsistent outcomes: some courts have ruled that FERA's new language applies to pre-enactment conduct while others have reached the opposite result. Much of practical consequence rides on how we resolve this ambiguity the Department of Justice is currently investigating over a thousand FCA cases, each of which carries the potential for treble damages. I lay out an analytical solution by applying the Supreme Court's retroactivity doctrine announced in Landgraf v. USI Film Products and conclude that Congress intended the statute to operate retroactively.