One of the most basic questions under the False Claims Act—what facts a relator must plead to state a claim—is also one of the most difficult to answer. The Supreme Court is considering multiple certiorari petitions seeking to resolve a circuit split in the application of Rule 9(b)'s heightened pleading standard to the FCA. Even within those two broad approaches, courts continue to encounter new issues and to adopt a fact-specific stance on how much “particularity” the rule requires. Defendants need to pay continued close attention to circuit differences, and use the rule to the maximum extent possible to hold relators to the heightened standard.
For a False Claim Act (FCA)1 complaint to survive a motion to dismiss it must not only meet the ordinary 12(b)(6) plausibility standard,2 but also clear Rule 9(b)'s higher hurdle by “stat[ing] with particularity the circumstances constituting fraud.”3 This requirement accords defendants a measure of protection from baseless FCA qui tam (whistleblower) actions.4 The rule is silent, though, on how much detail is needed to plead fraud “with particularity,” and federal courts have not interpreted the requirement uniformly.
Generally, the circuits fall into two broad camps, with one group requiring plaintiffs to “show ‘representative samples' of the alleged claims for payment, specifying the time, place, and content of the acts and the identity of the actors,”5 and the other holding a plaintiff need only...
WASHINGTON (TNND) — FBI Director Kash Patel clashed with a Democratic lawmaker Tuesday during a Senate subcommittee budget hearing, forcefully denying allegations that he drinks excessively on the...