If a government hopes to function, it has to be able to enforce its laws. Our country is no exception, and in fact, the U.S. government is very good at enforcement. So when a big fraud case comes up, it’s absurd to think of Washington scrambling for a way to make things right.
Yet in the case of several large pharmacies accused of violating federal law, that scramble is exactly what’s happening.
The U.S. Government, through the Department of Justice, claims that big-name pharmacies like CVS and Walgreens “submitted false claims to the Federal Government” and even “illegally filled unlawful opioid prescriptions.” Walgreens went so far as to agree to a $300-million settlement last year. Clearly, if pharmacies knowingly submitted improper claims or violated federal law, the government has robust civil tools to enforce a remedy – namely, in this case, the False Claims Act, under which the DOJ procured the Walgreens settlement.
But settlement notwithstanding, the DOJ is not leading with the tools at its disposal–including the FCA. Instead, government lawyers are pioneering novel litigation theories to pursue sweeping civil claims against these pharmacies. At a time when the American people already struggle to trust the justice system, this is a recipe for disaster.
The FCA, which goes all the way back to the Civil War, is the cornerstone of modern legal enforcement against fraud. Its provisions are robust:
• Whistleblowers can directly bring forth what are known as qui tam actions – that is, lawsuits on the government’s behalf.
• Regular whistleblowers who prevail in court can recover damages and penalties.
• The DOJ is ready to take on a suit when claims are substantiated.
• To protect against frivolous lawsuits, courts require proof of knowing misconduct and materiality.
These historical and administrative barriers forge the FCA’s strong foundation for government action against fraud. So what does a broader civil theory – like what the Trump DOJ is attempting to employ against the pharmacies – accomplish that the FCA can’t deliver?
To answer that, we first must analyze the risks of procedural trailblazing. The most obvious problem is that sweeping new enforcement theories can expand liability without improving outcomes.
For Americans, that means pharmacies adopting overly restrictive dispensing practices, which means needless suffering for patients who can’t fill a “suspicious” prescription. Communities already facing pharmacy closures – like in Pennsylvania, Missouri and nationwide – will have their access to essential drugs and therapies further restricted. And when businesses are uncertain about whether they’ll get sued, especially by the government, they’re less likely to bring their services to high-need areas.
Never mind the risk that the DOJ’s lawsuit will fail, which would mean a huge waste of taxpayer dollars. Even if the suit succeeds, how much more efficient could it have been if the DOJ had simply relied on established legislation?
Let’s return to our question: Why cast aside the powerful FCA in favor of sweeping new theories of civil law? Clearly, the latter course does little in the way of remedy. On the other hand, big lawsuits do make for a lot of publicity and profitability, both for lawyers and for the DOJ.
Of course, the purpose of civil enforcement is not publicity. When fraud is proven, we expect the government to recover the stolen money, target bad actors, and use established tools that will withstand judicial scrutiny. The FCA provides the resources to do these things, albeit without much in the way of headlines.
Whether any of the big pharmacies committed fraud is yet to be proven. The good news is that proving wrongdoing is a big part of what our legal system is intended to do. But that purpose is obscured if the government instead prioritizes trumpeting accomplishments while flesh-and-blood human beings suffer. Patients need access to their pharmacies. Taxpayers should be confident that their money supports a government unstained by fraud, corruption, or negligence. And communities benefit from federal litigation only when the government’s enforcement of the law actually works.
The Trump White House has an opportunity here: to prioritize targeted, proven remedies over theatrical litigation. Real accountability means using the right tools to fix and prevent real harm – rather than ever-expanding, voracious lawsuits that risk creating more. If suits must be filed, let the government pursue them under the tried-and-true False Claims Act, along with any other tested legal paths at hand. That will take some willpower at the DOJ, but it’s worth doing.
