The Bottom Line

• False Claims Act suits are increasing, but plaintiffs’ chances of success against a motion to dismiss on presentment grounds can vary depending on the venue where claims are brought.
• The Sixth and Eleventh Circuits have established the strictest requirements for relators pleading presentment of a false claim, while the Fourth and Seventh Circuits apply an “intermediate” standard that is more favorable to relators.
• Whistleblowers have a particularly difficult time pleading presentment if they can’t provide concrete examples of fraudulent claims that go beyond suspicions or inferences.

The number of False Claims Act relator suits continue to rise year after year. Last fiscal year, whistleblowers filed 979 qui tam lawsuits, the highest number in a single year. Recent events, including the announcement of the new DOJ-HHS False Claims Act Working Group and the launch of the Justice Department’s Civil Rights Fraud Initiative suggest those numbers are likely to increase, putting increased pressure on companies that interact with the government.

Against that backdrop, companies facing FCA cases would be wise to consider their circuit’s standards for pleading presentment of a false claim. The FCA’s presentment requirement can pose particular challenges for relators without direct knowledge of billing practices and frequently provides a strong basis for companies to move to dismiss claims brought by such relators.

The Presentment Requirement

The federal FCA...

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