Scienter is an element that the government or relator must prove to demonstrate a violation of the False Claims Act, 31 U.S.C. § 3729, et seq. Under the False Claims Act, the required scienter, or state of mind, is “knowledge.” In other words, the False Claims Act only penalizes defendants who knowingly submitted false claims, i.e., submitted the false claim with knowledge of the claim’s falsity.

Knowledge Defined

The False Claims Act defines knowledge to be broader than actual knowledge. It sets out three alternative definitions of “knowing and knowingly,” each independently sufficient to demonstrate that the defendant has the requisite knowledge to support a violation.

The Act requires that the defendant:

1. Have actual knowledge that the information submitted is false;
2. Acts in deliberate ignorance of the truth or falsity of the information submitted; or
3. Acts in reckless disregard of the truth or falsity of the information submitted.

The False Claims Act also clarifies that the knowledge requirement does not require proof that the defendant had the specific intent to defraud the government when they submitted the claim.

Under Federal Rule of Civil Procedure 9(b)—which otherwise requires False Claims Act claims to be pleaded with particularity—allegations of scienter may be pleaded generally. Combined with scienter’s frequent involvement of highly factual questions about the defendant’s knowledge, the issue of scienter often is not resolved until trial. However, there are...

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