DOJ Announces New Initiative to Prioritize Working with Certain “Data Miner” Relators in False Claims Act Cases

1. In general, successful data miners and relators share similar characteristics:  effective relators typically identify a clear violation of the law and provide the government a cohesive investigative roadmap, and the best data miners provide accurate, predictable, and reliable data and a clear understanding of the law.⁸See id. (explaining that “the most successful relators have identified a clear and material violation of a statutory, regulatory, or contractual obligation, and provided the government with a cogent investigative roadmap of facts to corroborate, witnesses to interview, and evidence to obtain” and that “the best data miners provide valuable leads through high-quality, reliable, and predictive data analyses and signals and a thorough understanding of the relevant legal obligations”).
   
   
2. The best data miners have a strong grasp of the facts underlying their complaints.  They have considered competing interpretations of the defendant’s conduct and can articulate why the data indicates wrongdoing, including as to the scienter and falsity elements of their FCA claim.⁹See id. (“When considering whether to file a qui tam complaint, the best data miners will assess potential alternative explanations for the observed conduct and be able to articulate how the data, in combination with other available evidence, suggests both scienter and falsity.”).
   
   
3. The best data miners have a clear understanding of the law applicable to their claims.  They analyze the applicable regulatory frameworks and program eligibility requirements, seeking out assistance from others when necessary, and correctly describe the pertinent law in their complaints.¹⁰See id. (“Data miners should also take steps to adequately understand program eligibility requirements and relevant regulatory frameworks and articulate them in their complaints. Data miners should look to partner with others who can aid their understanding of program eligibility requirements and regulatory frameworks.”).
   
   
4. Data miners’ complaints alleging fraud must still satisfy Federal Rule of Civil Procedure 9(b)’s heightened pleading standard to survive a motion to dismiss.¹¹See id. (“Data miners should be mindful of the heightened pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure that applies to complaints alleging fraud.”). Effectively analyzing large amounts of data may help relators detect fraud, but it does not provide them an end-run around the requirement to allege fraud with particularity.¹²See id. (explaining that Federal Rule of Civil Procedure 9(b) “includes the obligation to state with particularity the circumstances constituting fraud”).

DOJ called upon data miners who satisfied these criteria to meet with attorneys in the Civil Fraud Section.¹³See id. (“As part of the FOCUS initiative, the Department invites data miners to meet with the Civil Fraud Section to discuss their capabilities and outline why and how their data signals reliably correlate to fraud.”). However, DOJ did not describe further how it would prioritize working with them under the initiative or whether it would intervene in their cases. 

Key Takeaways and Observations

• The AI era of FCA enforcement has arrived.  The rapid and massive shift in how FCA cases are being brought – with nearly half of all complaints since 2024 being filed by data miners rather than traditional relators with insider knowledge – shows that data analytics and AI are having a pronounced impact.  With this announcement, DOJ is demonstrating that it is open to innovation and willing to leverage advanced AI tools to combat fraud. The FOCUS initiative signals that the Department intends to add AI-driven detection methods to its FCA enforcement toolkit.
  
  
• However, DOJ is also imposing quality standards on data mining actions.  Perhaps given the proliferation of data-mining based FCA actions, the FOCUS announcement also imposes several quality controls for the types of cases that DOJ is interested in and will be likely to intervene in.  The Department’s guidance emphasizes a number of considerations for “high quality” data miner actions, including thoughtful analysis of the data – for instance, seeking assessments of alternative explanations for observable conduct in the data.  These criteria appear to create a standard for the “high quality” FCA cases brought by data miners that DOJ will prioritize, indicating that the use of publicly available data alone may not automatically make the case of interest to DOJ. 
  
  
• FCA enforcement is growing and remains a DOJ priority.  The Trump Administration has repeatedly stated that FCA enforcement is a priority.¹⁴See Press Release, U.S. Dep’t of Just., False Claims Act Settlements & Judgments Exceed $6.8B in Fiscal Year 2025 (Jan. 16, 2026), https://www.justice.gov/opa/pr/false-claims-act-settlements-and-judgments-exceed-68b-fiscal-year-2025 (explaining that “[s]topping rampant fraud is a priority, and this record-breaking year proves the False Claims Act remains one of the government’s most powerful weapons against fraud” (internal quotation marks omitted)); Press Release, U.S. Dep’t of Health & Hum. Servs., DOJ-HHS False Claims Act Working Grp. (July 2, 2025), https://www.hhs.gov/press-room/hhs-doj-false-claims-act-working-group.html (“HHS and DOJ’s Civil Division are strengthening their ongoing collaboration to advance priority enforcement areas through the DOJ-HHS False Claims Act Working Group.”). And DOJ’s announcement regarding the FOCUS initiative and record-breaking qui tam activity continues to build upon a dynamic year of FCA developments.  We reported in January that DOJ was using the FCA to target corporate DEI programs, which among other actions, “signal[ed] the potential for a broader, cross-sector enforcement wave to come in 2026.”¹⁵Alicia O’Brien et al., Leveraging the False Claims Act to Target Corporate DEI Programs, King & Spalding LLP (Jan. 9, 2026), https://www.kslaw.com/news-and-insights/leveraging-the-false-claims-act-to-target-corporate-dei-programs. Last month, DOJ launched the National Fraud Enforcement Division, which “will enforce the Federal criminal and civil laws against fraud targeting Federal government programs, Federally funded benefits, businesses, nonprofits, and private citizens nationwide,” highlighting the threat of parallel criminal and civil enforcement in fraud-related actions.¹⁶Press Release, The White House, Fact Sheet: President Donald J. Trump Establishes New Dep’t of Just. Div. for Nat’l Fraud Enf’t (Jan. 8, 2026), https://www.whitehouse.gov/fact-sheets/2026/01/fact-sheet-president-donald-j-trump-establishes-new-department-of-justice-division-for-national-fraud-enforcement; see also U.S. Dep’t of Just., supra note 2 (“On April 7, the Department of Justice launched the first-ever National Fraud Enforcement Division (NFED) to investigate and prosecute those who steal or fraudulently misuse taxpayer dollars.”).
  
  
• The public disclosure bar remains a significant, yet still largely untested, defense for companies facing FCA data mining actions.  The FCA’s public disclosure bar may shield defendants from FCA actions brought by data miners that originate from publicly available data in certain circumstances.  Under this provision, courts will dismiss FCA actions “if substantially the same allegations . . . were publicly disclosed” in several circumstances including judicial and administrative proceedings, congressional or executive branch agency reports and proceedings, and the news media unless the action is brought by the government or the relator is the information’s original source.¹⁷31 U.S.C. § 3730(e)(4)(A)(i)-(iii). As a result, defendants should closely scrutinize the source of FCA allegations derived from publicly available data to determine if they originated from of one of the provision’s sources that mandate dismissal.  Data miners may argue that dismissal is improper because they are the information’s original source as they have “knowledge that is independent of and materially adds to the publicly disclosed allegations” and “ha[ve] voluntarily provided the information to the Government before filing.”¹⁸Id. § 3730(e)(4)(B). However, a U.S. Court of Appeals for the D.C. Circuit decision from last year highlighted the difficulty that data miners face when trying to take advantage of this provision, concluding that a relator’s concession that she relied on “publicly accessible data” that was “available nationwide eviscerate[d] any assertion that she obtained this information independently,” foreclosing her invocation of the original source exception.¹⁹United States ex rel. Winnon v. Lozano, 146 F.4th 1197, 1210 (D.C. Cir. 2025).
  
  
• Companies with significant amounts of public data or in highly regulated industries face outsized risk.  DOJ’s point that data miners failed to keep pace with DOJ-originated SBA pandemic-relief-related actions hints that DOJ anticipates that the FOCUS initiative will improve relators’ performance when bringing these types of actions in the future.  Also, as noted before, data miners’ use of powerful AI tools will almost certainly drive a meaningful increase in qui tam actions related to industries where there is voluminous data and the deliverables are known and easily modeled.  Healthcare and defense – industries that are highly regulated, involve substantial government funding, and have significant amounts of available data – will be clear targets for data mining relators.  Companies in these sectors should revisit their FCA risk assessments now:  inventory the public data sets in which they appear, run the same kinds of analyses DOJ and relators are running to identify outliers and prepare contemporaneous explanations, and recalibrate detection and self-disclosure timelines to account for the compressed window between an anomaly becoming visible in public data and a complaint being filed under seal.