Litigation Update: Ninth Circuit Stays Mandate to allow Gilead to Seek Cert on Key Post-Escobar Issues
We reported previously on yet another implied certification case raising significant questions about materiality and falsity in the post-Escobar world, United States ex. rel. Campie v. Gilead Sciences, Inc., in which the Ninth Circuit reversed the district court’s dismissal of the case.
Gilead subsequently petitioned the Ninth Circuit to rehear the case or
rehear the case en banc. That petition
was denied on September 27. Gilead then
filed a motion seeking a stay of the mandate to allow it to file a cert petition
with the Supreme Court. That motion was
granted and the mandate has been stayed pending Gilead’s petition to the Court.
previewed that its cert petition will present substantial questions regarding:
under Escobar, a complaint fails the materiality requirement of the FCA
when there is evidence the Government continued to pay claims despite knowledge
of the alleged misconduct; and
- if continued FDA approval of a drug after
allegations of FDA regulatory violations is fatal to a complaint premised on
In granting the stay, the Ninth Circuit agreed that Gilead’s certiorari
petition would present “substantial questions,” noting that it had split with
other circuits on both issues raised by Gilead. The Ninth Circuit also found that there was
good cause for a stay because continued proceedings in the district court would
“saddle” both parties with “costly and potentially unnecessary discovery” and
“wast[e] judicial resources on claims the Supreme Court may well reject as a
matter of law.”
Gilead’s petition for
certiorari is due December 26, 2017. We
will continue to monitor this case.