Ninth Circuit Rules Supreme Court’s Two-Part Test of Implied Certification under the False Claims Act Mandatory

Three-D Number Two

In cases where the now-mandatory two-part test is not met, absent appeal, the defendant may be absolved of FCA liability.

May 13, 2019
Meredith Thielbahr - Gordon & Rees Construction Law Blog

For those contractors in the government arena, read on.

The False Claims Act (“FCA”) was enacted to deter knowingly fraudulent actions by contractors which resulted in a loss of property to the Government. Intent to defraud with resulting financial hardship was required. Contrary to popular misconception, the statute was not designed to punish all false submissions to the Government simply because those submissions, or claims, are later found to be false. The statute’s inclusion of the requisite element of knowledge is consistent with this notion:

  1. A defendant must submit a claim for payment to the Government;
  2. the claim must be false or fraudulent;
  3. the defendant must have known the claim was fraudulent when it was submitted (also known as scienter); and
  4. the claim must have caused the Government to pay out money.

See 31 U.S.C. § 3729(a).

Despite these explicit elements (in addition to common law elements of fraud), over the last two decades, contractors have seen ever-expanding theories of FCA recovery presented by qui tam plaintiffs and the Government. For example, under the FCA, the false “claim” evolved over time: the claim no longer needs to be an express false claim (i.e. the truthfulness of the claim is a direct condition of payment); the claim can be “implied” misrepresentation or “half-truth”.

Ms. Thielbahr may be contacted at mthielbahr@grsm.com



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