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The Supreme Court May Limit the False Claim Act's Scope

By Joseph Savage, E. Abim Thomas, Ezekiel L. Hill and Ashley E. Moore
April 01, 2016

Over the last 20 years, the Department of Justice (DOJ) and whistleblowers, with the support of many courts, have become increasingly aggressive in pursuing supposed false claims for federal reimbursement under the False Claims Act (FCA), 31 U.S.C. ” 3729-3733. In 2015, for example, the DOJ reported 737 new FCA matters and recovered more than $3.5 billion in FCA settlements and judgments, including more than $1.9 billion from health care industry defendants.

A key to the recent onslaught has been the development of the “implied certification” theory of false statements ' the government vendor makes no direct false statement and provides the goods and/or services, but nevertheless is subject to penalties and possibly treble damages on the theory that the vendor implicitly agreed to obey all rules and regulations that are conditions of payment, and implicitly lied about doing so in submitting a claim. The Supreme Court is is poised to decide the viability of this approach.

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