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.