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False Claims Act (“FCA”) complaints are subject to the heightened pleading requirements of Rule 9(b),
Universal Health Servs., Inc. v. United States, 136 S. Ct. 1989, 2004, 195 L. Ed. 2d 348 (2016). But circuits are split on whether that requirement should be relaxed for relators, or whistleblowers, who lack direct access to the alleged fraud.
The Fourth, Eighth, and Eleventh circuits seemingly apply Rule 9(b) more rigidly, while the First, Third, Fifth, Sixth, Seventh, Ninth and Tenth circuits have a more flexible approach. In 2019, the U.S. Supreme Court was expected to resolve this split, but before the Court issued its decision, the parties settled, leaving the circuit split in place. In this article, we examine recent decisions that illustrate a possible shift in the Seventh Circuit’s pleading standard.
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Tuesday, February 23, 2021
certiorariin
CareAlternatives v. United States (
CareAlternatives), a case on appeal from the Third Circuit that could have assessed the issue of “objective falsity” under the federal False Claims Act (FCA). The Supreme Court’s rejection leaves standing the split among Circuit Courts on whether a whistleblower (Relator) must prove that a claim is objectively false in order to bring a successful FCA claim. This means that health care providers potentially face differing levels of FCA risk depending on where an FCA case is brought.
As we have previously discussed, federal courts are split on whether Relators must prove objective falsity. Both
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Legal
On Monday February 22, 2021, the U.S. Supreme Court declined to grant
certiorari in
CareAlternatives v. United States (
CareAlternatives), a case on appeal from the Third Circuit that could have assessed the issue of “objective falsity” under the federal False Claims Act (FCA). The Supreme Court’s rejection leaves standing the split among Circuit Courts on whether the government or a whistleblower (Relator) must prove that a claim is objectively false to bring a successful FCA claim. This means that health care providers potentially face differing levels of FCA risk depending on the jurisdiction where an FCA case is brought.
As we have previously discussed, federal courts are split on whether Relators or the government must prove objective falsity. Both
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