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FCA NOW

Government Enforcement and Corporate Investigations Practice Group

First-To-File Rule / Original Source

8 Jul, 2015

Ninth Circuit Unanimously Overrules Long-Standing “Original Source” Precedent; Makes it Easier to Qualify as an Original Source Under the FCA

For 23 years, the Ninth Circuit required that a relator establish three elements to qualify as an “original source” under the False Claims Act: (1) the relator must have direct and independent knowledge of the information on which her allegations are based; (2) the relator must have voluntarily provided that information to the government before filing her qui tam lawsuit; and (3) the relator must...

False Statement / Implied Certification

7 Jul, 2015

Seventh Circuit Rejects Implied Certification Theory of FCA Liability

Deepening a circuit split, the Seventh Circuit has joined the Fifth Circuit in rejecting the implied false certification theory of liability under the FCA.  United States v. Sanford-Brown, Ltd., No. 14-2506 (7th Cir., June 8, 2015).  The Fourth, Ninth, Tenth and District of Columbia Circuits have allowed implied false certification claims. The implied false certification theory holds that when an entity enters into an agreement...

First-To-File Rule

26 Jun, 2015

D.C. Circuit Interprets the First-to-File Rule Narrowly

A decision this week from the D.C. Circuit shed light on three important issues.  United States ex rel. Heath v. AT&T, Inc., No. 14-7094 (D.C. Cir. June 23, 2015).  In 2008, the appellant, Todd Heath, filed an FCA qui tam suit against Wisconsin Bell, Inc., a wholly owned subsidiary of AT&T.  In that suit Heath alleged that certain employees of Wisconsin Bell made affirmative misrepresentations...

First-To-File Rule / Statute of Limitations

26 Jun, 2015

In KBR v. Carter, Supreme Court Clarifies the First-To-File Doctrine and the Statute of Limitations Under the Wartime Suspension of Limitations Act

Late last month, the Supreme Court issued a unanimous, two-part decision that clarified the meaning of the term “offense” as used in the Wartime Suspension of Limitations Act (“WSLA”), and the term “pending” as used in the first-to-file doctrine.  The Court held that (i) the suspension of the statute of limitations under the WSLA applies only to criminal offenses; and (ii) a qui tam suit...

Persons subject to FCA

21 Jun, 2015

Ninth Circuit Holds that Indian Tribes are not “Persons” subject to FCA

In a brief unpublished memorandum opinion released on June 15, 2015, the Ninth Circuit affirmed the district court’s dismissal of an FCA claim brought against a tribe, holding that tribes do not fit within the FCA’s definition of “persons.”  See Thomas Howard and Robert Weldy, ex rel. United States v. Shoshone Paiute Tribes of the Duck Valley Indian Reservation, No. 13-16118 (9th Cir. June 15, 2015).  Whistleblowers Howard and Berg, former tribal employees, alleged that the tribes...

Determining Actual Damages

12 May, 2015

Sixth Circuit Reminds Government of its Burden to Prove Actual Damages in False Claims Act Litigation

Last week, the United States Court of Appeals for the Sixth Circuit vacated a federal district court’s award of $657 Million for treble damages under the False Claims Act (“FCA”), restitution, and prejudgment interest.  See United States v. United Technologies Corp., No. 13-4057, 2015 WL 1516215, *11-17 (6th Cir. Apr. 6, 2015).  The Sixth Circuit’s decision serves as a useful reminder that it is the...

False Statement

24 Mar, 2015

First Circuit Takes “Broad View” of Falsity for Pleading Purposes

In a break with other Circuits, the First Circuit recently reaffirmed its broad definition of a “false statement’ under the False Claims Act.  United States ex rel. Escobar v. Universal Health Services, Inc., No. 14-1423 (1st Cir. Mar. 17, 2015).  Notably, the court continues to take a “broad view of what may constitute a false or fraudulent statement to avoid ‘foreclosing FCA liability in situations...

Public Disclosure

6 Feb, 2015

Fourth Circuit Clarifies Meaning of False Claims Act’s “Public Disclosure” Bar

In an important decision regarding the False Claims Act’s much-litigated “public disclosure” bar, the United States Court of Appeals for the Fourth Circuit recently concluded that the disclosure of reports and audits to government officials, without further distribution to the public or dissemination in the “public domain,” does not implicate the FCA’s “public disclosure” provision.  See United States ex rel. Wilson v. Graham Cnty. Soil...