By Jessica Westerman and Carolyn Wheeler ( December 19, 2018, 12:13 PM EST) -- On Nov. 24, 2018, the U.S. Court of Appeals for the Ninth Circuit denied the Stephens Institute's petition for rehearing en banc in United States ex rel. Rose v. Stephens Institute,[1] a False Claims Act case in which the relators alleged an "implied false certification" theory of liability. The decision left in place the panel's holding that the test laid out in United Health Services v. United States ex rel. Escobar,[2] is mandatory in False Claims Act cases alleging this theory of liability, supplanting the test previously articulated in Ebeid ex rel. United States v. Lungwitz.[3] By declining to elaborate on the differences between Escobar and Ebeid, the Ninth Circuit left practitioners with little guidance as to what types of allegations would have satisfied Ebeid, but will now be barred by Escobar....