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False Claims Act Statistics, News & Analysis

False Claims Act Cert. Monitor: Mid-Term Review of Pending FCA Cert. Petitions

With the Supreme Court’s last conference before the holidays past us, we wanted to catch up with the many FCA petitions for certiorari that remain pending. We have written about most of these previously, so without further ado:

Pennsylvania Higher Education Assistance Agency v. U.S. ex rel. Oberg, No. 15-1045; U.S. ex rel. Kreipke v. Wayne State University, No. 15-1419U.S. ex rel. Willette v. University of Massachusetts, No. 15-1437

Issue: Whether an entity created by the state for purposes of providing financial aid to students, but which is also one of the largest providers of student loans across the country, is an arm of the state immune from FCA liability or an independent political subdivision subject to FCA liability.

Status: The Court issued a call for the views of the Solicitor General (CVSG) in May 2016 in the Oberg case, and the SG filed a brief in opposition to cert. on December 6, 2016. The SG’s opposition is not a death knell, however. An empirical study has confirmed that, even when the SG recommends against review, the odds of a grant remain much higher for cases that have been the subject of a CVSG than other paid petitions. The other two petitions, filed by relators, appear to be held for Oberg.

U.S. ex rel. ABLE v. U.S. Bank, N.A., No. 16-130

Issue: Whether an FCA claim can be barred by a public disclosure if the public disclosure does not identify the specific fraud asserted in the relator’s complaint, but instead only describes the same general type of conduct.

Status: The Court issued a CVSG in October 2016. The SG has not yet filed its brief.

U.S. ex rel. Purcell v. MWI Corp., No. 16-361

Issue: Whether a plaintiff can show knowledge through proof of the defendant’s subjective understanding of an ambiguous contractual or regulatory requirement when the defendant can show that there is an objectively reasonable interpretation under which its claim was not false and it was not warned away from that position by the government.

Status: The United States submitted a brief opposing relator’s petition for cert. The Court scheduled the petition for conference on January 6, 2017.

Kmart Corp. v. U.S. ex rel. Garbe, No. 16-408

Issue: Whether the pre-FERA requirement to show that false statements were made with the intention of getting a false claim paid applies to “claims” submitted for payment after June 7, 2008, or FCA “claims” filed in court after that date.

Status: The Court scheduled the petition for conference on January 6, 2017.

U.S. ex rel. Bishop v. Wells Fargo Bank, N.A., No. 16-578

Issue: Whether the Court should grant, vacate, and remand a lower court decision issued after Universal Health that did not expressly consider Universal Health.

Status: A response is due December 28, 2016.

U.S. ex rel. Jallali v. Sun Healthcare Group, No. 16-669

Issue: Whether the Court below improperly applied Universal Health.

Status: A response is due December 21, 2016.

U.S. ex rel. Gage v. Davis S.R. Aviation, LLC, No. 16-694

Issues: (1) Whether the lower courts improperly applied Universal Health. (2) Whether the lower courts should have allowed relator leave to amend his complaint to meet Rule 9(b). (3) Whether the lower court should have evaluated relator’s jurisdictional public disclosure bar issue before reaching the Rule 9(b) issue.

Status: A response is due December 27, 2016.

U.S. ex rel. Lee v. Ernst & Young, No. 16-735

Issues: (1) Whether a case dismissed for failure to state a claim can bar a qui tam under the public disclosure bar. (2) Whether sealing evidence presented by relator violates the First Amendment. (3) Whether sanctions against plaintiff’s counsel were appropriate.

Status: A response is due January 5, 2017.

Farmer v. Eagle Systems and Services, Inc., No. 16-518

Issue: Whether the reporting of a single case of theft of night vision goggles, which is arguably not FCA activity, is protected activity under the FCA retaliation provision.

Status: The Court scheduled the petition for conference on January 6, 2017.

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