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The FRCP Rule 9(b) Standard In False Claims Act Cases
The Justice Department recently reported obtaining more than $5.6 billion in settlements and judgments from civil cases involving fraud and false claims against the government in fiscal year 2021. See, Justice Department's False Claims Act Settlements and Judgments Exceed $5.6 Billion in Fiscal Year 2021 (Feb. 1, 2022). This is the largest annual total in False Claims Act (FCA) history since 2014, no doubt spurred in part by fraud related to COVID-19. This growing wave of fraud has not only caught the attention of federal authorities, but also private parties who are bringing more and more lawsuits in federal courts across the country under the FCA alleging fraud against the government, including fraud against federal health insurance programs such as Medicare and Medicaid.
In general terms, the FCA imposes liability on persons who knowingly submit false claims to defraud federal government programs. In addition to allowing the United States to pursue perpetrators of fraud on its own, the FCA allows private citizens to file suits on behalf of the government (called "qui tam" suits) against those who have defrauded the government. Because these are fraud claims, they are subject to the heightened pleading requirement of Federal Rule of Civil Procedure 9(b), which states that, "[i]n alleging fraud …, a party must state with particularity the circumstances constituting fraud."
In recent years, federal circuit courts of appeals have set forth somewhat different standards that civil FCA complaints brought by private citizens, known as relators, must meet to satisfy Rule 9(b) — especially regarding whether representative examples of allegedly fraudulent claims must be included in a complaint. Although the practical impact of the disagreement among the circuits is of some dispute, the U.S. Supreme Court is currently considering whether to grant certiorari in a case where the petitioners, claiming a clear circuit conflict over what Rule 9(b) requires in FCA cases, presented the issue as, "[w]hether Rule 9(b) requires plaintiffs in [FCA] cases who plead a fraudulent scheme with particularity to also plead specific details of false claims." In opposition to the petition, the respondent asserted that the petitioners' had "vastly" overstated the alleged split in authority. Johnson v. Bethany Hospice and Palliative Care, No. 21-462 (S.Ct.). On January 18, the court invited the Solicitor General to file a brief expressing the government's views.
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