Law360 Publishes Akin Gump Article on 9th Circuit False Claims Act Ruling

Law360 has published “9th Circ. FCA Ruling Undermines Escobar,” an article written by Akin Gump health partner Robert Salcido, litigation senior counsel Catherine Creely and litigation counsel Carroll Skehan. The article examines a ruling by the U.S. Court of Appeals for the 9th Circuit that False Claims Act (FCA) relators “must satisfy the two-part test for implied false certification claims set out in Universal Health Services Inc. v. United States ex rel. Escobar.

Salcido, Creely and Skehan begin with a discussion of the Supreme Court’s 2016 Escobar decision, which, they said, sanctioned “a limited application of the implied false certification theory of FCA liability.” The Court’s approach made sense as, historically, “courts have been wary of FCA implied false certification claims.”

According to the authors, however, the 9th Circuit decision misapplied Escobar’s mandatory implied false certification test and failed to apply Escobar’s rigorous materiality standard. They write that the appellate court’s decision not only “gives lip service to, but ultimately contravenes, Escobar’s fundamental principles.” In the end, the decision “turns Escobar on its head and threatens to set a dangerous precedent for future FCA cases.”

To read the original version of this article, as it appeared in an Akin Gump client alert, please click here.