Category Archives: Litigation

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DOJ Formalizes Guidance for Government Dismissal of Unmeritorious Qui Tam Suits

A Memorandum dated January 10, 2018 and authored by Michael Granston, Director of the Commercial Litigation Branch of the Fraud Section of the U.S. Department of Justice, was published on January 24, 2018 (the “Memorandum”). The Memorandum, addressed to DOJ attorneys, describes the factors that government attorneys should consider in deciding whether the government should voluntarily … Continue Reading

FCA Materiality: It’s One thing to Proclaim but It’s Another Thing to Prove

In United States, et al., ex rel. Ruckh v. Salus Rehabilitation, LLC, et al., Case No. 8:11-cv-1303-T-23TBM (M.D. Fl. Jan. 11, 2018), a federal district court judge offered a thoughtful, cogent analysis of both the letter and spirit of the Supreme Court’s decision in Universal Health Services, Inc. v. Escobar, 136 S. Ct. 1989 (2016) … Continue Reading

Did the FCA’s “Implied Certification” Theory Dodge a Bullet?

Yesterday’s argument before the Supreme Court in Universal Health Services, Inc. v. U.S. ex rel. Escobar had the potential to put false claims based on an “implied certification” in the crosshairs. Instead, based on the weight of questioning by a plurality of justices, it appears that some form of implied certification theory may survive. (We … Continue Reading

DOJ Seeks Rehearing in D.C. Circuit Case, Hoping to Resurrect Liability for a Contractor’s “Objectively Reasonable” Interpretation of an Ambiguous Contract Provision

We previously reported on a D.C. Circuit case in which a three-judge panel held that when the government is silent, there is no False Claims Act (FCA) liability for a contractor’s “objectively reasonable” interpretation of an ambiguous contract provision. The government is now seeking a rehearing en banc (a rehearing by all of the D.C. … Continue Reading

Supreme Implications: High Court to Decide Fate of “Implied False Certification” Theory

Setting the stage for what may be a far-reaching interpretation of the False Claims Act (FCA), the Supreme Court of the United States granted certiorari to resolve a circuit split over whether “implied certification” is a viable theory of liability under the FCA. Universal Health Servs., Inc. v. United States ex rel. Escobar, No. 15-7. … Continue Reading

D.C. Circuit: When The Government Is Silent, There Is No FCA Liability For A Contractor’s “Objectively Reasonable” Interpretation Of An Ambiguous Contract Provision

In a significant win for government contractors, health care providers, and financial institutions who operate in an increasingly onerous regulatory environment, the United States Court of Appeals for the D.C. Circuit issued an important False Claims Act (FCA) ruling in United States ex rel. Purcell v. MWI Corporation, No. 14-5210 (D.C. Cir. Nov. 24, 2015).  … Continue Reading

The Ninth Circuit Overrules Decades of Precedent To Make It Easier For Relators To Qualify As An “Original Source”

A relator bringing an action under the civil False Claims Act (FCA) is required to be an “original source” of the allegations.  31 U.S.C. § 3730(e)(4).  To qualify as an original source under the statute, the relator must (1) have “direct and independent knowledge” of the information giving rise to the claims and (2) “provide[] … Continue Reading

What’s Next: The Future of False Claims Act Litigation After KBR v. U.S. ex rel. Carter

The last Supreme Court term was a big one.  Most observers will remember it as the term that upheld Obamacare, established a constitutional right to same-sex marriage, and introduced the American lexicon to “jiggery-pokery.”  Those staying abreast of developments in the civil False Claims Act (FCA) jurisprudence, however, will remember the 2014 term for settling … Continue Reading

SCOTUS: No Unlimited Suspension of the Statute of Limitations Under the False Claims Act; “First-to-File” Doctrine Does Not Bar Related Suits in Perpetuity

In an opinion released May 26, 2015, Kellogg Brown & Roots Services, Inc. v. United States ex rel. Carter, the U.S. Supreme Court unanimously held that whistleblowers cannot extend the statute of limitations for war-related civil false claims under the Wartime Suspension of Limitations Act (“WSLA”), reinstating an already generous statute of limitations period under … Continue Reading

The Fourth Circuit Strengthens the FCA’s Implied Certification Theory in Triple Canopy

Under the “implied certification” theory of liability, a government contractor can violate the False Claims Act (“FCA”) by submitting a mere invoice for payment.  The theory is that the invoice’s submission impliedly certifies compliance with contract conditions.  If a contractor is not complying with material contract requirements and — despite the contractor’s noncompliance — submits … Continue Reading
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