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In this episode, hosts Mana Lombardo and Jason Crawford talk with Sarah Hill, an associate in the firm’s Government Contracts Group, about False Claims Act cert petitions pending at the Supreme Court. “Let’s Talk FCA” is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.

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This week’s episode covers Supreme Court, NDAA, and ‘Fat Leonard’ news, and is hosted by partners David Robbins and Peter Eyre. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

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For the third consecutive term, the Supreme Court will hear a case involving the False Claims Act (FCA).  On May 31, the Court granted review in State Farm Fire and Cas. Co. v. U.S. ex rel. Rigsby to address the applicable standard for dismissal in FCA cases when whistleblowers (referred to as relators under the statute) violate the FCA’s statutory sealing provision by publicly revealing the allegations in their complaint while it is under seal and being investigated by the government.  The case presents the Court with an opportunity to resolve a split in which circuits have applied three tests: (1) a bright-line rule that mandates dismissal; (2) a rule that considers whether the violation frustrates the congressional goals served by the seal requirement; and (3) a balancing test that focuses on whether the violation actually harms the government.  Crowell & Moring plans to monitor developments closely and will provide an update when the case is fully briefed.

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The government has reiterated in no uncertain terms its proposed standard for particularity under the FCA: “a qui tam complaint satisfie[s] Rule 9(b) if it contains detailed allegations supporting a plausible inference that false claims were submitted to the government, even if the complaint does not identify specific requests for payment.”  Brief for United States as Amicus Curiae, United States ex rel. Nathan v. Takeda Pharmaceuticals, Petition for Certiorari No. 12-1349 (U.S. 2013).  While opining at some length about the state of case law in the lower courts, the Solicitor General ultimately asked the Supreme Court not to hear the case.

Many of us thought that Nathan was a good opportunity for the Supreme Court to resolve an apparent split among the circuits (an issue we discussed in posts from February and March of last year).  The point of contention is the particularity required in an FCA complaint under Rule 9(b): is it enough to allege a fraudulent scheme, or must a plaintiff also furnish details about the claims themselves?  The government finds concerns about this circuit split to be somewhat overstated.  See Br. at 10 (“[T]hose circuits that initially endorsed the per se rule [requiring identification of specific claims] have issued subsequent decisions that appear to adopt a more nuanced approach.”).  The government thus finds the extent of inter-circuit disagreement to be “uncertain,” suggesting that it “may be capable of resolution without the Court’s intervention.”  Id. at 10, 14. Continue Reading Solicitor General Addresses Standard for Rule 9(b) in FCA Cases, Asks Supreme Court Not to