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Did the FCA’s “Implied Certification” Theory Dodge a Bullet?

Yesterday’s argument before the Supreme Court in Universal Health Services, Inc. v. U.S. ex rel. Escobar had the potential to put false claims based on an “implied certification” in the crosshairs. Instead, based on the weight of questioning by a plurality of justices, it appears that some form of implied certification theory may survive. (We previously reported on this case, here.)

Under the implied certification theory, a claim for payment can be false simply because the contractor has not complied with an applicable statute, regulation, or contractual provision. There need not be any affirmative misrepresentation in the claim itself or an express certification of compliance. Although the phrase “implied certification” has evolved as a term of art under the FCA, what it really refers to is the common law concept that a statement can be misleading—and potentially fraudulent—by implication or omission.

Although the nuances in the underlying lower court opinions (e.g., whether the noncompliance concerned a condition of payment versus a condition of participation) were virtually ignored, it soon became apparent that Justices Breyer, Kagan, and Sotomayor may be unwilling to reject the implied certification theory. Justice Sotomayor in particular drew support from the law of contracts by analogizing a breach of performance with falsity. In contrast, Chief Justice Roberts was the lone voice concerned about the burden placed on contractors if the failure to comply with any one of myriad regulations applicable to contractors could trigger FCA liability. Although Justice Breyer posited that a blanket express certification of compliance would obviate any objection that there was no actual falsity, this would still leave contractors with an unrealistic burden precisely because of the sheer volume of regulations.

The Government (as amicus, not having intervened in the case) argued that a request for payment necessarily represents that the contractor is legally entitled to be paid, and that “if the person knows that he has failed to comply with a material term of the contract or a material regulatory requirement, by definition, the government will have no obligation to pay, and the claim of legal entitlement will be false.” In other words, the FCA elements of materiality and scienter place reasonable limits on the reach of the implied certification theory. The scope of materiality and scienter, however, was not an express issue before the Court.

In sum, given yesterday’s argument, it appears that the Supreme Court may not shoot down the implied certification theory under all circumstances as the defense bar would prefer. But you never can tell, so stay tuned.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume VI, Number 111


About this Author

Scott F. Roybal, government contracts legal specialist, sheppard mullin

Mr. Roybal is a partner in the Government Contracts, Investigations & International Trade Practice Group in the firm's Los Angeles office.

Areas of Practice

Mr. Roybal practices business litigation in federal and state courts and before arbitration and administrative tribunals.  He has extensive experience handling government contract disputes and defending individuals and corporations in a wide range of civil and criminal fraud investigations.  He has more than 25 years of experience litigating qui tam False Claims Act cases and related...

Barbara Taylor, government contracts, attorney, Sheppard Mullin, law firm
Special Counsel

Ms. Taylor is a special counsel in the Government Contracts and Regulated Industries practice group in the firm's Los Angeles office.

Ms. Taylor's practice includes complex civil litigation, corporate internal investigations, and responding to government investigations.  Her complex civil litigation practice focuses on business disputes and defense of qui tam (false claims) cases. Her internal investigations practice focuses on clients in the defense and aerospace industry regarding government contract and cost accounting issues, product quality and testing, and clients in the health care industry regarding compliance with legal and regulatory requirements.