While it has been six years since the enactment of the New York False Claims Act, N.Y. State Fin. Law §187 et seq. (NYFCA), a number of questions regarding the application of the NYFCA remain open. Primarily to blame are the relatively few NYFCA cases that have been adjudicated since 20071 (the majority of cases brought under the NYFCA have settled). Furthermore, to date, only one NYFCA case, New York ex rel. Grupp v. DHL Express (USA),2 has been decided by the New York Court of Appeals. Additionally, there are only a handful of decisions ruling on claims brought under the 2010 amendments to the NYFCA, making it especially difficult to determine what effect those significant amendments will have on the future of NYFCA litigation.

The 2010 Amendments to the NYFCA

Like many state versions of the federal False Claims Act, the NYFCA was modeled closely after the federal FCA when it was first enacted in 2007. In many respects, the NYFCA still retains many of the same attributes as its federal counterpart, and federal courts continue to apply similar analyses to analogous provisions of the federal and New York statutes.3 However, the NYFCA differs in some important respects from the federal FCA and was amended in 2010 to include, among other things: 1) an entirely new claim for violations of the N.Y. tax code (in contrast to the federal FCA, which contains no provision for violations of the Internal Revenue Code);4 2) revised pleading standards;5 and 3) a narrowed definition of "publicly disclosed." Then New York state senator Eric T. Schneiderman referred to the 2010 amendments as the foundation of a "False Claims Act on Steroids."6

The NYFCA Case Law

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