We at Qui Notes were hopeful that the Supreme Court would take up one of two pending petitions to bring needed clarity to the question of what it means for a claim to be “false or fraudulent” under the False Claims Act. After all, the last FCA case before the High Court was from the October 2018 term and addressed an important, but somewhat esoteric, statute of limitations issue. Central to virtually every FCA claim, indeed one of the key elements for liability, is the question of what renders a FCA claim “false,” particularly where reasonable minds could disagree as to the falsity of an express or implied representation. Does this crucial element require “objective falsity,” as several circuits have held, meaning a representation capable of being proven objectively untrue? Or, as other circuits have held, is “subjective falsity” sufficient, that is, a representation deemed false based on an after-the-fact disagreement by a judge or jury with a judgment made at the time the invoices were submitted?
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