The Supreme Court (Court) will soon decide whether to take up a critical (and long-running) issue concerning applicability of Federal Rule of Civil Procedure 9(b) pleading standards in False Claim Act (FCA) suits. To satisfy Rule 9(b)’s particularity requirement for fraud allegations, FCA plaintiffs generally have needed to detail specific false claims submitted by defendants. The question that has divided federal courts for more than a decade is whether a plaintiff instead may plead the submission of false claims more generally without identifying specific claims if they provide sufficient reliable indicia that false claims were submitted—such as the qui tam plaintiff’s personal knowledge of or participation in the alleged fraudulent practices that are the basis of the FCA action. The issue is particularly salient in cases where the government declines intervention and the whistleblower (or relator), who is often a former employee of the defendant, may not have access to the relevant invoices at issue.[1]
This is not a new issue: In 2010 and 2014, the Court invited the Solicitor General to file briefs expressing the government’s views in two cases addressing whether the pleading of specific false claims is absolutely required under Rule 9(b). In both cases, the Solicitor General argued against a per se requirement, noting it would hinder relators’ ability to detect and remediate fraud. In 2010, the government acknowledged the existence of a circuit split on the issue but...
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