Question of the Week — Should the Supreme Court Clarify Escobar?

Earlier this week, the Supreme Court declined to hear appeals in two False Claims Act (FCA) cases: U.S. ex rel. Berg v. Honeywell Int’l and Stephens Inst. v. U.S. ex rel. Rose. Each case was dismissed by a lower court based on the FCA’s materiality standard, with heavy citations to the Supreme Court’s 2016 decision Universal Health Servs. v. U.S. ex rel. Escobar. Berg and Rose are the fourth and...

Fifth Circuit Applies “Demanding” Escobar Materiality Standard

By Rosie Dawn Griffin The Supreme Court’s holding in Universal Health Services, Inc. v. United States ex rel. Escobar continues to be hashed out in the lower courts. Last month, the Fifth Circuit applied Escobar’s materiality standard in U.S. ex rel Abbott et al. v. BP Exploration and Production, Inc. et al., a whistleblower case former BP contractor Kenneth Abbott brought under the False Claims Act (FCA) in 2009. Abbott...

Ninth Circuit Applies Escobar, Dismisses Whistleblower Suit against Government Contractor

By Hallie Noecker Last Thursday, the Ninth Circuit issued United States ex rel. Kelly v. Serco, Inc., the latest in a series of False Claims Act decisions—including in the First, Seventh, and Eighth Circuits—wrestling with the Supreme Court’s holding on materiality in Universal Health Services, Inc. v. United States ex rel. Escobar. Citing Escobar’s “rigorous” and “demanding” materiality standard, the Ninth Circuit affirmed the district court’s summary judgment dismissal of...

First Circuit Weighs in on Supreme Court’s Materiality Standard in Escobar Remand

By Rosie Dawn Griffin The Supreme Court’s opinion in Universal Health Services, Inc. v. United States ex rel. Escobar—in which the high court upheld the implied false certification theory of liability but placed a new focus on materiality under the False Claims Act (FCA)—has predictably spawned a number of lower court decisions grappling with materiality in the varied factual landscape of FCA litigation, including decisions in the Seventh and Eighth...

Post-Escobar, Seventh Circuit Again Dismisses Suit Against For-Profit Educational Institution

By Hallie Noecker Another federal circuit recently weighed in to apply the U.S. Supreme Court’s holding in Universal Health Services, Inc. v. United States ex rel. Escobar. Escobar was largely a victory for the United States and whistleblowers combatting fraud under the False Claims Act (FCA), resolving a split in the federal circuits by unanimously upholding implied false certification as a viable theory of FCA liability. Following the decision, however,...

Eighth Circuit Applies Escobar Materiality Test

By Rosie Dawn Griffin The Supreme Court’s June 2016 decision in Universal Health Services, Inc. v. United States ex rel. Escobar—which unanimously endorsed the FCA’s implied false certification theory of liability, but reframed the Act’s materiality standard—left open questions as to how lower courts would interpret the high court’s holding that material noncompliance with an applicable statute, regulation, or contract provision is required to support an FCA action. Much remains...

DOJ Fights a Catch-22 in False Claims Act Cases

Cases under the False Claims Act live or die on their evidence, and it’s no surprise that defendants wage long wars to resist efforts by the plaintiff (whether a whistleblower or the government) to prove their case.  Heeding the old saw about the best defense, defendants also generally go on the offensive.  They happily foot staggering legal bills to try to wear out a typically less-well-funded plaintiff with onerous discovery...

Can the False Claims Act Protect Immigration Detainees from Forced Labor?

By William Greenlaw A recent human rights case raises a novel question of False Claims Act applicability: when private immigration detention facilities defraud the government by forcing individuals into labor. The federal government has a vast regulatory and statutory scheme meant to stop federal contractors from using trafficked labor. But forced labor in detention facilities has historically been overlooked. After a recent Fifth Circuit decision, that may no longer be...

June 16, 2021

Whistleblower partners Eric Havian and Ed Baker were quoted in a Law360 article, Escobar 5 Years Later: How FCA Earthquake Is Reverberating.  (subscription required)

Eleventh Circuit Revives VA Mortgage Fraud Whistleblower Case

Last week, a three-judge panel on the Eleventh Circuit breathed new life into a fifteen-year-old mortgage fraud lawsuit brought by two whistleblowers under the False Claims Act.  The opinion, United States ex rel. Bibby v. Mortgage Investors Corporation adds another voice to the chorus of circuit courts applying the Supreme Court’s landmark 2016 ruling on the FCA’s “materiality” standard, Universal Health Services, Inc. v. United States ex rel. Escobar.  This time...