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False Claims Act Statistics, News & Analysis

False Claims Act Cert. Monitor: Relators Seek GVR from High Court in Light of Escobar

At the end of October, relators petitioned the Supreme Court for a “GVR” of the Second Circuit’s decision in Bishop v. Wells Fargo & Co., 823 F.3d 35 (2d Cir. 2016). That is, relators asked not that the Court hear their case on the merits, but rather that it grant the petition for certiorarivacate the decision below, and remand the case for further proceedings in light of the Court’s intervening decision in Escobar.

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  • 10
  • November
  • 2016

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Government Declaration and Defendant’s Lackluster Response Allows D.D.C. to Effortlessly Find Materiality in Post-Escobar Case

In United States v. Dynamic Visions, Inc., decided at the end of October, the D.C. district court found that the United States had met Escobar’s stringent materiality standard by relying in part on the unchallenged declaration of an agency executive attesting that alleged violations of Medicaid regulations of the type alleged in the case would have caused the government to deny reimbursement of the claims. No. 11-695 (CKK), 2016 WL 6208349 (D.D.C. Oct. 24, 2016). The defendants’ apparent failure to challenge the government’s declaration, or to question materiality at all, limits our ability to draw conclusions about the use of such government declarations to prove materiality. But, we expect to see more declarations from government officials as parties in FCA cases strive to prove or disprove materiality after Escobar.

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"Leak Away!": State Farm Cautions Court of Message to be Sent to Future Seal-Violators

Last week, the United States Supreme Court heard oral arguments in State Farm & Casualty Company v. United States ex rel. Rigsby (No. 15-513). For the third year in a row, the Court granted certiorari in an FCA case, here to resolve a circuit split over the standard for determining whether a qui tam action should be dismissed due to a violation of the statute’s seal requirement.

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Litigation Update: Rose District Court Recognizes Sanford-Brown Decision and Certifies Post-Escobar Questions for Interlocutory Appeal

We have been monitoring United States ex rel. Rose v. Stephens Institute, a post-Escobar implied false certification case in which the Northern District of California considered whether a university violated the FCA when it obtained funding from the U.S. Department of Education (DOE) by allegedly falsely certifying compliance with Title IV of the Higher Education Act. Relators allege in this non-intervened case that the university was providing incentive payments to student recruiters, which is a violation of Title IV. As we reported here, the court ruled against the university on both falsity and materiality and the university moved to certify the district court’s order for immediate appeal. Over the government’s objections in a statement of interest, the district court on October 28, 2016 certified three of the university’s four proposed questions for interlocutory appeal and stayed the case pending resolution of the university’s appeal.

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Spooky Stuff: FCA Trolls Win Big in the Third Circuit

In today’s post-Halloween blog, we take a look at a case out of the Third Circuit that may have sent a shiver down the spine of any potential FCA defendant. This non-intervened reverse false claim case originating from the Eastern District of Pennsylvania previously had been dismissed with prejudice by the District Court under Federal Rule of Civil Procedure 12(b)(6). United States ex rel. Customs Fraud Investigations, LLC v. Victaulic Co., No. 15-2169, 2016 WL 5799660 (3d Cir. Oct. 5, 2016). Last month, however, the Third Circuit brought the case back, giving the relator's case a potentially promising afterlife.

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