The Fourth Circuit, in United States ex rel. Sheldon v. Allergan Sales, LLC, No. 20-2330, 2022 WL 211172 (4th Cir. Jan. 25, 2022) recently upheld the dismissal of False Claims Act.
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It should surprise absolutely no one that “falsity” is a core element of the False Claims Act – it is the
FALSE Claims Act, after all. However, it may come as a surprise that there is substantial disagreement over what exactly can be false, and how falsity can be established. This term, the U.S. Supreme Court received two petitions for certiorari associated with cases raising just that issue; however, on February 22, 2021, it declined both, leaving in place a circuit split that creates considerable uncertainty for people and entities that have a financial relationship with the government – particularly those in the health care space, who participate in COVID-19 economic incentive programs, who hold government contracts, or who otherwise have a financial relationship with the government – and amplifies the strategic imperative of forum selection.
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On February 22, 2021, the United States Supreme Court declined to review two False Claims Act (FCA) cases, solidifying a split that pits the Eleventh Circuit against the Third and Ninth Circuits as to whether a disagreement over a physician’s clinical judgment can serve as a basis for establishing “falsity” under the FCA. Specifically, the Eleventh, Third and Ninth Circuits have each rendered decisions about the need to demonstrate objective falsity, and whether a reasonable difference of opinion between physicians is sufficient to trigger FCA liability.
Objective Falsity and a Divide Among the Circuits
Wednesday, February 24, 2021
On February 22, 2021, the United States Supreme Court declined to review two False Claims Act (FCA) cases, solidifying a split that pits the Eleventh Circuit against the Third and Ninth Circuits as to whether a disagreement over a physician’s clinical judgment can serve as a basis for establishing “falsity” under the FCA. Specifically, the Eleventh, Third and Ninth Circuits have each rendered decisions about the need to demonstrate objective falsity, and whether a reasonable difference of opinion between physicians is sufficient to trigger FCA liability.
Objective Falsity and a Divide Among the Circuits
For decades, FCA litigants have battled over whether a difference of opinion – including disagreements over medical decision-making – can serve as a basis for establishing falsity. Opponents continue to argue, with varying degrees of success, that a claim is “false” only where there is an