While FCA defendants typically find themselves first opposite the government in the investigative phase, and then opposite the relator during the litigation phase of such matters, the Supreme Court recently heard a case pitting the government and relator against one another. U.S. ex rel. Polansky v. Executive Health Resources, Inc. presents two issues: (i) when the United States moves to dismiss after previously declining to intervene, what "hearing" is required; and (ii) what standard would apply to this motion to dismiss. The dispute in the case stems from the relator's objection to the United States' motion to dismiss after the relator spent $20 million litigating the suit.
First, oral argument addressed the issue of what qualifies as a hearing for the dismissal action under § 3730(c)(2)(A). While the United States contended that the hearing is only for the relator to convince the United States not to dismiss the case, the relator argued that a hearing requires a full and open presentation before the trial court.
Second, while parties and the Court largely ignored the preliminary "academic" question of whether the United States must intervene prior to moving to dismiss a suit, much of the oral argument focused on whether the rational-basis standard or Federal Rule of Civil Procedure 41(a)(2)'s "proper cause" standard should apply. Either standard creates a low threshold for dismissal, but the relator pushed for a "proper cause" standard that could require a court to...
Over the last year, beyond traditional healthcare and federal procurement matters, the government has pursued federal False Claims Act (FCA) investigations and enforcement across high-risk areas, i...