There has been growing variation among courts of appeal over the appropriate pleading standard to apply under Rule 9(b) to the element of presentment, i.e., the requirement that plaintiffs plead with particularity the submission of a false claim to the government for payment. This topic has been the subject of repeated Supreme Court cert petitions (as discussed further here), and the topic has been raised yet again in a cert petition filed late last year in Johnson v. Bethany Hospice and Palliative Care, LLC (No. 21-462) (lower court opinion discussed here). The relator in Bethany Hospice, whose case was dismissed by the Eleventh Circuit for “rely[ing] on mathematical probability to conclude that a defendant surely must have submitted a false claim at some point”, seeks Supreme Court review of this “longstanding circuit split.” The Supreme Court invited a response from the Solicitor General. As discussed below, the Solictor General’s brief attempts to blur the distinctions between the various approaches of the courts of appeal, in an effort to convince the Supreme Court not to hear the case.
The relator argues that the circuits currently fall into one of three camps: (1) one circuit (Eleventh) requires “relators who have pled a fraudulent scheme with particularity also to plead specific details of false claims”; (2) six circuits (Third, Fifth, Seventh, Ninth, Tenth, D.C.) “allow[] the submission of claims to be inferred from circumstances (including from a fraudulent...
Days after Hayden Panettiere recalled being put in bed with a well-known man by someone she trusted, social media sleuths zeroed in on one name Diana Jerkins. The former Real Housewives of Beverly...