False Claims Act Cert. Monitor: Eight FCA Petitions on the 2017 Docket So Far
With the first day of fall comes the new term at the Supreme Court, and
with the new term comes the chance to catch up with petitions we wrote about
last year and with new petitions filed over the summer. We know of at least six
FCA petitions that were set to be considered at the Court’s Long Conference on
September 25, and we should learn their fates this week. Meanwhile, we have
tracked down two other petitions still in briefing. These petitions touch on
everything from the Rule 9(b) pleading standard, to reverse false claims, to
knowledge in the face of ambiguous rules, to Escobar’s two-part falsity test, to sanctions for relator
First, the Long Conference petitions. At the Long Conference, the Court
considers petitions that were fully briefed over the summer. This year, it
looks like 851 petitions are set for the Long Conference. Petitions at the Long
Conference are less likely as a statistical matter to be granted — it is
unclear whether that is because they get lost in the mass of petitions or
because timid new clerks who arrive over the summer are reluctant to recommend
a grant. With that in mind, here are the FCA cert. petitions set to be
considered, many of which we have discussed previously:
- Victaulic Co. v. U.S. ex rel. Customs Fraud
Investigations LLC, No. 16-1398: (1) With what level of particularity
does a relator need to plead details about the submission of a false claim to
survive Rule 9(b); (2) Is a failure to pay a fine that has not yet been imposed
by the government in its discretion a reverse false claim?
- U.S. ex rel. Jackson v. University of North
Texas, No. 16-1098:
Is the three-year tolling provision for the statute of limitations available
for relators in non-intervened qui tam
cases? Note that, in this case, the Court called for a response, suggesting
some interest in the petition.
- U.S. ex rel. Harper v. Muskingum Watershed Conservancy
District, No. 16-1278:
Does a relator have to plead subjective knowledge of violation of law and no mistake
of law to show knowledge?
- U.S. ex rel. Grynberg v. Agave Energy Co.,
Does a ruling that a case is barred under the pre-FERA public disclosure bar,
which is jurisdictional, mean the district court lacked jurisdiction to award
- U.S. ex rel. Hayes v. Allstate Ins. Co.,
Is dismissal an appropriate sanction for a plaintiff alleging personal
knowledge of FCA violations by all companies in an industry when in fact the
relator only had personal knowledge for some of the defendants?
- U.S. ex rel. Nguyen v. Cleveland, No. 16-1484:
This petition is a bit hard to decipher, but seems to ask about the ability of
a bankruptcy trustee for the relator to settle an FCA case.
Second, there are two new petitions that are still being briefed and
will be decided by the Court later this term, both coming out of circuit court
decisions we previously covered.
- Triple Canopy, Inc. v. United States,
(response currently due Oct. 16): Is Escobar’s
two-part test for falsity in implied certification cases mandatory, or can any
simple invoice impliedly certify compliance with all relevant contract terms
- U.S. ex rel. McGrath v. Microsemi Corp.,
(response waived, not yet distributed for conference): (1) If a defendant says
it lacked knowledge because it had a good faith interpretation of a rule, can
the relator survive a motion to dismiss by alleging the defendant was warned
away from that interpretation? (2) Can a relator establish materiality simply
by showing that a reasonable person would consider the violation material — e.g.,
the disclosure of national security secrets? (3) If the government continued to
pay despite knowing of the violation, can a relator still establish materiality
by showing the violation goes to the benefit of the bargain?
We will circle back soon and let you know how the chips fall for the
petitions set for the Long Conference, and keep an eye out for new petitions as
they are filed.