The Circuit Courts have been split on their interpretation of the Supreme Court’s Escobar standard for the implied certification theory of liability under the federal False Claims Act: whether the two-part test it identified is the only standard, or merely one of many possible ways to establish liability.
But in U.S. ex rel. Rose et al. v. Stephens Institute, the Ninth Circuit joined the majority of courts in mandating Escobar’s two-part test, although it expressed reluctance in doing so. It also left the door open for a change of opinion, saying that this ruling would stand “unless and until our court, en banc, interprets Escobar differently.”
