The Supreme Court is considering two False Claims Act (FCA) cases that have the potential to reshape the FCA landscape and impact defense strategy. They are:

• U.S. ex. Rel. Polansky v. Executive Health Resources, in which it will decide whether the government retains authority to dismiss an FCA case after declining to intervene; and
• Olhausen v. Arriva Medical LLC, in which the petitioner seeks review as to whether an objectively reasonable but ultimately erroneous statutory or regulatory interpretation is sufficient to defeat the requirement for a “knowing” violation.

The FCA imposes liability on those who defraud the government, specifically those who “knowingly” present a false claim for payment or records and statements material to a false claim. The qui tam provision of the FCA encourages private whistleblowers (relators) to file suit while allowing the government to intervene and take control. The qui tam provision is often debated. Some argue it serves as a check against government corruption, but others believe it allows for meritless litigation, drains judicial resources and imposes undue costs on defendants and the government, which is forced to participate in discovery even when it declines to intervene. Health care companies, as frequent FCA targets, have a particular interest in the outcome of these issues.

Does the government retain dismissal authority after it declines to intervene?

In 2012, Dr. Jesse Polansky, a consultant for Executive Health Resources,...

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