“Counterintuitive” but Perhaps Not “Absurd?”—Supreme Court Hears Argument on Whether Relators Can Take Advantage of Three-Year Tolling and Government Knowledge in FCA Cases

It has been a busy week for False Claims Act watchers at the Supreme Court. The appetizer was the Court’s certiorari denial yesterday in Prather, the other potential vehicle for a second look at Escobar, and today’s entrée was oral argument in Cochise Consultancy, Inc. v. United States ex rel. Hunt, where the Supreme Court will decide whether relators, like the government, can take advantage of the three-year tolling provision of 31 U.S.C. § 3731(b)(2), and if so, whether it is the relator’s knowledge that counts. As Justice Kavanaugh observed at oral argument, allowing relators to take advantage of tolling, while at the same time pinning the tolling on the government’s knowledge, might be counterintuitive, but is it such an absurd reading that the Court might depart from the statutory text?

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