Robert Huffman and Peter Hutt Examine False Claims Act Ruling in Bloomberg BNA Article
Robert Huffman and Peter Hutt, partners in Akin Gump’s litigation practice, have authored an article for Bloomberg BNA’s Federal Contracts Report, which looks at a recent 4th Circuit decision pointing up the dangers under the False Claims Act (FCA) whenever the government or a relator alleges that documents were intentionally falsified.
The article, “The Fourth Circuit Takes a Unique Approach to Implied False Certifications in FCA Cases,” centers on the case “United States ex rel. Badr v. Triple Canopy,” in which the appeals court dismissed the government’s and relator’s FCA complaints against a security contractor for allegedly submitting false claims for payment and creating false records for security guards that had failed certain marksmanship tests. The decision, the authors write, has been “both hailed and criticized for joining other appellate courts in adopting the so-called “implied certification doctrine” of FCA liability.
Huffman and Hutt assess the significance of the 4th Circuit’s decision, noting that, while it swept aside the defendant’s arguments “that an implied false certification can only be based upon non-compliance with a contractual requirement that is an express precondition of payment,” there were some bright spots for defendants. The decision, they say, “keeps alive the critical distinction between false claims and “garden variety” breaches of contract, and suggests that qui tam actions based upon alleged contractual violations unaccompanied by allegations of actual knowledge and fraudulent concealment of those violations will not be treated as implied false certifications.”
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