Letter Supporting an Amendment to S. 386, the "Fraud Enforcement and Recovery Act of 2009"

April 22, 2009

TO THE MEMBERS OF THE UNITED STATES SENATE:

The U.S. Chamber of Commerce, the world's largest business federation representing more than three million businesses and organizations of every size, sector, and region, supports an amendment expected to be offered by Sen. Kyl to S. 386, the "Fraud Enforcement and Recovery Act of 2009," which would address serious concerns with the underlying legislation.

As noted in previous correspondence, the Chamber has concerns with S. 386 as currently crafted related to the scope of the bill and provisions related to materiality and retroactivity. Moreover, the Chamber questions whether changes to the False Claims Act are required.

The Kyl amendment would address some of these concerns because it would clarify that an actionable "obligation" would not include a contingent or potential duty to pay penalties or fines, and that liability would be imposed only for knowing and improper "retention" of an overpayment, as opposed to liability attaching for a mere "receipt" of an overpayment.

The Chamber looks forward to continuing to work with the Senate to improve the provisions of S. 386. The Chamber may consider votes on, or in relation to, this issue, including the Kyl amendment, in our annual How They Voted scorecard.

Sincerely,

R. Bruce Josten