Last week, we posted about the U.S. Supreme Court’s request for input from the Solicitor General on how False Claim Act complaints should be reviewed by courts.
Currently, the plaintiff-relators in two cases—U.S. ex rel. Owsley v. Fazzi Associates, Inc. and Johnson v. Bethany Hospice & Palliative Care, LLC—have submitted petitions for certiorari asking the Supreme Court to resolve what they see as a “long-standing circuit split” on the application of Rule 9(b) in False Claims Act cases.
In the Bethany Hospice case, which was the first to submit a petition, the plaintiff-relator argued that her complaint was dismissed under the Eleventh Circuit’s “rigid” application of Rule 9(b), which in most cases requires the specific details of at least one false claim that was actually submitted to the government, but that her complaint would have easily survived dismissal in many other circuits that only require “reliable indicia” that such claims were submitted.