Robert Salcido Quoted in Federal Contract Report on Supreme Court Implied Certification Claims Ruling

Akin Gump health partner Robert Salcido has been quoted in the Bloomberg BNA Federal Contract Report article “Analysis: No Harm, No Fraud If U.S. Continues to Pay?” regarding the Supreme Court’s ruling earlier this year in Universal Health Servs. Inc. v. United States ex rel. Escobar. The decision, which involved implied certification claims, has led some, according to the article, to conclude that if the government knows about a contractor’s alleged noncompliance and continues to pay its invoices anyway, that should be enough to defeat False Claims Act (FCA) cases.

The article reports that some recent filings suggest defendants believe they can defeat implied certification cases by saying there’s no materiality if the government knew about unsatisfactory performance but paid anyway. Salcido said prior to the decision, some courts said it was improper to look at whether the government continued to pay despite falsity, while other courts said the government’s reaction is relevant.

“It appears that the Supreme Court clearly sided with the viewpoint that it is very relevant to determine what the government typically does when it learns of the purported ‘falsity,’ meaning whether it denies payment or elects some other lesser remedy which would not result in an FCA violation,” Salcido said.