Certifications

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,...

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...

In Their Own Words — Stewart

-- The term "implied certification" is new. . . .  But the concept that a person can be held liable for fraud even though he says nothing explicitly false but labors to create a false impression, that's been around for ages.

Malcom Stewart, Deputy Solicitor General, arguing before the Supreme Court in Universal Health Services v. U.S. ex rel. Escobar.

Constantine Cannon Whistleblower Suit Against KBR Will Go Forward: False Certification of Compliance Not Needed To State a Claim

C|C Whistleblower Team By Janice Kelly A whistleblower suit against KBR will go forward after a district court judge found that relators’ complaint sufficiently alleged a violation of the False Claims Act. Judge Michael M. Mihm found that relators’ claims that KBR sidestepped required inventory controls and ordered hundreds of millions of dollars of unneeded materials met the FCA’s requirement that fraud...

First Circuit Joins Growing Number Of Courts Taking More Reasoned View Of What Constitutes Fraud Under The False Claims Act

By Gordon Schnell The False Claims Act is all about addressing fraud resulting in financial loss to the government.  But the statute does not actually define what constitutes this essential element.  Instead, it has been up to the courts to decide how far to extend the statute's ultimate reach.  This has led to a divergence of views with some courts taking a narrow and more formalistic approach to the statute's...

Fourth Circuit Embraces Expansive View of False Claims Act Fraud and Materiality In Triple Canopy Ruling

By Gordon Schnell Another circuit court decision giving a properly expansive view of what it takes to make out a fraud claim under the False Claims Act.  This one from the Fourth Circuit in United States v. Triple Canopy, Inc..  Before the Court were two key questions.  One, whether a defense contractor's claim for payment still could be false when there was nothing false on the face of the invoice.  And two,...