Two weeks ago, in Universal Health Services Inc. v. U.S. ex rel. Escobar, the Supreme Court unanimously affirmed the viability of the “implied false certification” theory of False Claims Act liability, at least in certain circumstances.  Writing for a unanimous Court, Justice Thomas explained that a defendant can face FCA liability under an implied certification theory where two conditions are satisfied:

1. The claim asserts a request for payment and makes specific representations about the goods or services provided, and
2. The failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.

This portion of the ruling was not unexpected given the overwhelming acceptance of implied certification among the Circuit courts. But, more importantly, out of concern that the statute be applied too broadly, the Court also explained at length that the “materiality” standard in the statute is a “demanding” one, and set a high bar for the Government and relators to demonstrate materiality of the alleged non-compliance.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2016/06/supreme-court-implied-certification-ok-but-materiality-is-no-gimme/