In a recent article published in Law360, Roger Lewis drew on his extensive experience in the representation of whistleblowers in False Claims Act (FCA) cases to discuss the U.S. Supreme Court’s assessment of pending petitions seeking the Supreme Court's review of a purported division between Circuit Courts, despite the Department of Justice’s claim in a brief submitted on behalf of the U.S. Solicitor General that the Circuit split is "exaggerated."
Currently, there are three pending cases before the Supreme Court to determine if FCA whistleblowers, or "relators," must identify specific fraudulent billing claims in their pleadings to satisfy pleading standards, specifically Rule 9(b) of the Federal Rules of Civil Procedure. At the Supreme Court's invitation, the U.S. Solicitor General weighed in with its recommendation that the Supreme Court should deny certiorari review in the first of these cases because, in the eyes of the government, there is no such Circuit split requiring Supreme Court intervention. In its brief submitted for the Solicitor General, the Department of Justice explained that, notwithstanding the position of the litigants in these cases, the Circuit Courts have set out a sufficiently clear and consistent set of standards for pleading FCA cases, with none articulating a "bright line" rule requiring FCA relators to identify specific fraudulent billing claims in their complaints in every instance.