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UPDATED: Covington’s Escobar Tracker

In Universal Health Services v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), the Supreme Court changed the landscape for False Claims Act litigation. The Court endorsed implied certification liability in certain circumstances, but set a high bar for demonstrating the materiality of a violation of law, regulation, or contract to the government’s payment decision.

Nearly two years after the Escobar decision, lower courts continue to grapple with the case’s key holdings. It is essential that government contractors, practitioners, and other stakeholders keep abreast of how the courts are interpreting Escobar. To that end, Inside Government Contracts hosts Covington’s Escobar tracker, an index of district and circuit court cases applying the Court’s implied certification and materiality rulings. Our tracker provides a brief summary of each case and its Escobar-related holding.

This latest version of our tracker, available here, has been updated to include notable FCA decisions interpreting Escobar from the past few months. These recent cases include a series of important rulings underscoring the demanding nature of the FCA’s materiality standard, including the Fifth Circuit’s detailed discussion of post-Escobar materiality and a careful analysis of materiality under federal country-of-origin laws. The tracker also includes cases addressing the contours of implied certification under Escobar, including decisions out of the Eleventh and D.C. Circuits reaffirming limitations on the implied certification theory of liability.

We will continue to update the list periodically with new cases. We hope you find the tracker useful.

© 2020 Covington & Burling LLP


About this Author

Peter Barton Hutt, Food and Drug Attorney, Covington Law Firm
Special Counsel

Peter Barton Hutt is a senior counsel in the Washington, DC law firm of Covington & Burling, specializing in Food and Drug Law.  He began his law practice with the firm in 1960 and, except for his four years in the government, has continued at the firm ever since.  From 1971 to 1975 he was Chief Counsel for the Food and Drug Administration.

Mr. Hutt has represented the national trade associations for the food, prescription drug, nonprescription drug, dietary supplement, and cosmetic industries.  While at FDA he drafted the...

Jason Workmaster, Litigation attorney, Covington
Of Counsel

Jason Workmaster focuses his practice on government contracts-related litigation, including civil False Claims Act (FCA) cases, contract disputes, and bid protests. He has represented a host of clients in these types of cases in U.S. District Court, the U.S. Court of Federal Claims (COFC), and the Government Accountability Office (GAO).

A nationally recognized leader on FCA issues, Mr. Workmaster has appeared on NBC’s The TODAY Show and Canadian TV’s National News to discuss the highly publicized FCA case against the cyclist Lance Armstrong. Mr. Workmaster is also recognized as an expert on the General Services Administration (GSA) Schedules program. He regularly lectures on the schedules and appears on Federal News Radio to discuss issues related to the Schedules.

202 662 5412
Sarah Tremont, Covington Burling Law Firm, Washington DC, Corporate and Government Policy Litigation Attorney

Sarah Tremont represents clients in complex litigations and investigations, with particular expertise in defending government contractors against allegations of fraud and False Claims Act violations. She has experience representing clients at all stages of internal and government investigations, including conducting witness interviews, managing government subpoena and CID responses, defending witnesses in government interviews and CID testimony, and advocating before government enforcement officials. She has also represented clients in a variety of litigation matters...

Mike Wagner, Covington, government contracts lawyer

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations. He also conducts internal investigations of potential compliance issues, advises clients as to FAR mandatory disclosure requirements, and regularly represents clients in suspension and debarment proceedings.