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Recent Supreme Court Ruling Gives Whistleblowers More Time

SCOTUS delivered a unanimous opinion on May 13, 2019 affirming a Eleventh Circuit ruling that (1) the extended limitations period of up to 10 years applies to whistleblower-initiated False Claims Act lawsuits in which the government has declined to intervene and (2) whistleblowers in nonintervened cases are not "the official of the United States" referred to by the statute. This decision resolved a three circuit split. More

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Escobar decision continues to affect major FCA cases

In 2016, the Supreme Court decided the landmark FCA case Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S.Ct. 1989 (2016). Escobar resolved a circuit split over the implied false certification theory of liability under the FCA, upholding the theory as valid but tightly circumscribing its scope through a "rigorous" interpretation of the Act's materiality and scienter requirements—holding that "[a] misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government's payment decision in order to be actionable under the False Claims Act." Escobar, 136 S.Ct. at 1996. This holding continues to percolate through the federal courts, proving determinative in several recent cases of interest. More

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Materiality after Escobar: Why Government Behavior after a Defendant Presents a False Claim Is Not Dispositive

In Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), the Supreme Court resolved a circuit split over the implied false certification theory of liability under the False Claims Act (FCA). As opposed to express false certification, where the defendant allegedly has made an affirmative false statement regarding its compliance with underlying statutory or regulatory requirements, implied false certification is based on the defendant's failure to disclose its noncompliance with these requirements. In Escobar, the Court upheld implied false certification as a valid theory of liability under the FCA, but tightly circumscribed its scope through a "rigorous" interpretation of the Act's materiality and scienter requirements, holding that "[a] misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government's payment decision in order to be actionable under the False Claims Act." Escobar, 136 S. Ct. at 1996. More

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Why the False Claims Act Should be Read Broadly: Supreme Court Nominee Merrick Garland's Dissent in U.S. ex rel. Totten v. Bombardier Corp.

In U.S. ex rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C. Cir. 2004), Merrick Garland, president Obama's Supreme Court nominee, delivered a powerful dissent arguing that 31 U.S.C. 3729(a)(2) (now Section (a)(1)(B)) of the False Claims Act does not require a person to present a false claim directly to the Government; rather, liability should attach if a person made a false claim in order to get paid by the Government, whether the claim was presented to the Government or not (this construction of Section 3729(a)(2) was validated four years later by a unanimous Supreme Court in Allison Engine Co., Inc. v. U.S. ex rel. Sanders)More

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