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False Claims Act Statistics, News & Analysis

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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False Claims Act Cert. Monitor: Supreme Court Will Consider Four FCA Petitions Today

Today, at the Supreme Court’s 2016long conference,” the justices will consider some 1,600 petitions for certiorari in a single day. There are four FCA cert. petitions up for review. We covered those petitions in an earlier FCA Cert. Monitor post. In short, two of the petitions raise questions related to the public disclosure bar, U.S. ex rel. Cause of Action v. Chicago Transit Authority, No. 16-131; U.S. ex rel. Advocates for Basic Equality, Inc. v. U.S. Bank, N.A., No. 16-130. The remaining two petitions concern the application of Rule 9(b), U.S. ex rel. Walterspiel v. Bayer AG, No. 16-8, and what preclusive effect, if any, a prior determination that the government is not entitled to restitution has on the government’s right to seek damages in an FCA case, Anghaie v. United States, No. 15-1456. We are watching these cases closely and will report on the Court’s decisions.

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False Claims Act Cert. Monitor: Relator Asks Supreme Court to Decide If Halo's Glow Shines New Light on FCA's Knowledge Standard

The Supreme Court's decision in the patent case Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016), which we wrote about previously, has now inspired a new FCA cert. petition by the relator in an 18-year-old case U.S. ex rel. Purcell v. MWI Corp., No. 16-361, in which the relator seeks review of the D.C. Circuit ’s 2015 decision, 807 F.3d 281 (D.C. Cir. 2015).

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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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Could Good Things Come in Threes?

In 2015, there was Carterin 2016, there was Escobar, and a cert. grant in Rigsby on May 31, 2016, brought FCA practitioners a crucial step closer to a trifecta of good news for the defense bar. The latest case to be taken up is State Farm & Casualty Company v. United States ex rel. Rigsby (No. 15-513), which is on review from the Fifth Circuit. The Supreme Court could deliver another victory for defendants if it decides that relators’ violation of the FCA sealing provision requires dismissal of their suit.

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