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Will the Supreme Court Weigh In? Implied Certification Theory Under the False Claims Act

Can a factually accurate claim submitted to the government for payment be “false or fraudulent" under the False Claims Act (FCA)? For many years, federal courts have grappled with the issue, as discussed in a Mintz Levin client advisory that I recently co-authored with Tom Crane.  Under a legal fiction called implied certification theory, a claim can be rendered "false or fraudulent" under the FCA because of an underlying violation of law.  The First Circuit is the most recent circuit to issue an opinion addressing this theory, adding to a pre-existing split in the circuits.  As a result, as noted in a recent post, two petitions for certiorari have been filed in the United States Supreme Court in United States ex rel. Hutcheson v. Blackstone Med. Inc. and State of New York et al. ex rel. Westmoreland v. Amgen Inc. et al.  The outcome is important because the narrower the interpretation of the certification theory, the more confined is the reach of the FCA. Health care providers and pharmaceutical and medical device manufacturers should watch to see if the Supreme Court decides to provide guidance on how far the FCA should reach to police violations of other laws and regulations.

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Brian P. Dunphy is a member of the Health Care Enforcement & Investigations Group at Mintz. He defends clients facing government investigations and whistleblower complaints regarding alleged violations of the federal False Claims Act. Brian also handles commercial health care litigation.