9th Circ. Adds To Growing Consensus On Escobar FCA Test
By Gejaa Gobena, Sarah Marberg and Matthew Piehl ( August 28, 2018, 4:54 PM EDT) -- The U. S. Supreme Court's 2016 decision in Universal Health Services Inc. v. United States ex rel. Escobar[1] settled the key question of whether there can be liability for implied false certifications under the False Claims Act — there can — but left some big, open questions in its wake. The court held that when "a defendant makes representations in submitting a claim but omits its violations of statutory, regulatory, or contractual requirements, those omissions can be a basis for liability if they render the defendant's representations misleading with respect to the goods or services provided. "[2] But precisely when such omissions can be the basis for liability was not clearly resolved and has generated numerous conflicting opinions. . . .
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