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Fifth Circuit Breaks New Ground on Vicarious Liability Under the Anti-Kickback Act

Client Alert | 1 min read | 07.25.13

In U.S. ex rel. Vavra v. Kellogg Brown & Root, Inc. (July 19, 2013), the Fifth Circuit addressed, as a matter of first impression, whether the double damages provision of the Anti-Kickback Act (AKA) can be applied to a corporate entity under a vicarious liability theory or whether doing so would render the single damages provision that applies to corporate entities whose "employees" violate the AKA superfluous. The Fifth Circuit held that the AKA does allow for vicarious liability when an employee is acting either within her scope of employment or under "apparent authority," as defined by the common law of agency.


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Client Alert | 3 min read | 11.21.25

A Sign of What’s to Come? Court Dismisses FCA Retaliation Complaint Based on Alleged Discriminatory Use of Federal Funding

On November 7, 2025, in Thornton v. National Academy of Sciences, No. 25-cv-2155, 2025 WL 3123732 (D.D.C. Nov. 7, 2025), the District Court for the District of Columbia dismissed a False Claims Act (FCA) retaliation complaint on the basis that the plaintiff’s allegations that he was fired after blowing the whistle on purported illegally discriminatory use of federal funding was not sufficient to support his FCA claim. This case appears to be one of the first filed, and subsequently dismissed, following Deputy Attorney General Todd Blanche’s announcement of the creation of the Civil Rights Fraud Initiative on May 19, 2025, which “strongly encourages” private individuals to file lawsuits under the FCA relating to purportedly discriminatory and illegal use of federal funding for diversity, equity, and inclusion (DEI) initiatives in violation of Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025). In this case, the court dismissed the FCA retaliation claim and rejected the argument that an organization could violate the FCA merely by “engaging in discriminatory conduct while conducting a federally funded study.” The analysis in Thornton could be a sign of how forthcoming arguments of retaliation based on reporting allegedly fraudulent DEI activity will be analyzed in the future....

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