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False Claims Act Statistics, News & Analysis

There's a First Time for Every Exception: Sixth Circuit Endorses New Relaxed Version of Rule 9(b) for Relators with "Billing-Related Knowledge"

Further deepening a circuit-split – and potentially upping the odds the Supreme Court will ultimately have to weigh-in – the Sixth Circuit in United States ex rel. Prather v. Brookdale Senior Living Communities, Inc., No. 15-6377, 2016 WL 5539860 (6th Cir. Sept. 30, 2016), adopted a “relaxed” version of Rule 9(b) in certain FCA contexts. The court concluded that although Rule 9(b) generally requires a relator to identify a specific invoice to adequately plead that a false claim was presented to the government, an exception exists where a relator with “personal billing-related knowledge” pleads specific facts that give rise to a “strong inference” that a claim was presented.

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False Claims Act Cert. Monitor: Solicitor General Asked to Weigh in on Public Disclosure Bar Petition, and New Petition Filed on FERA Retroactivity

Straight out of the gates from the long conference, the Supreme Court yesterday, October 3rd, called for the views of the Solicitor General (CVSG) on a relator’s cert. petition about the FCA public disclosure bar in U.S. ex rel. Advocates for Basic Legal Equality, Inc. v. U.S. Bank, N.A. (“ABLE”), No. 16-130, a case which we have written about previously. The petition asks whether a public disclosure of a broad, general category of alleged misconduct bars an FCA claim about a narrower, specific subtype of that misconduct, even though that subtype was not specifically addressed in the public disclosure. Also, a new petition has been filed on the question of the retroactive application of the 2009 FCA amendments. Kmart Corp. v. U.S. ex rel. Garbe, No. 16-408.

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  • September
  • 2016


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Zero Damages Doesn’t Mean Zero Liability: DOJ Avoids Twice-Reversed False Claims Act Damages Calculation and Gets Paltry Disgorgement of Profits Instead

It is common knowledge that even if a relator or the government cannot prove the government suffered actual damages, the court may still impose FCA penalties where there is liability. But a recent district court opinion provides a reminder that the government’s recovery, even in FCA cases with zero actual damages, can contain a third component: disgorgement of profits based on claims of common law unjust enrichment, although such claims can be brought only by the government.

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False Claims Act Cert. Monitor: Who Is the State? Solicitor General Asked to Weigh in on FCA Liability of State-Affiliated Medical and Education Entities

There's a strong chance the Supreme Court will grant certiorari on the fourth FCA issue in the past few years. This time, the most likely candidate for review is an important question for state-affiliated universities and hospitals facing FCA claims: When are state-affiliated entities liable under the FCA? With three petitions on this issue, coming from both the defense and relators’ bars, and the Court calling for the views of the Solicitor General (CVSG) in one case, the chances look decent for a grant on this issue in the upcoming term. Also before the Court are two petitions related to the public disclosure bar, the latest petition on whether Rule 9(b) requires relators to plead specific false claims with particularity, and a pro se petition about the relationship between restitution for criminal charges and damages under the FCA.

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