On Monday, the Supreme Court asked the United States Solicitor General for her input on the amount of detail required to satisfy the particularity element in False Claims Act lawsuits. The court made its request in connection with Owsley v. Fazzi Associates, a Medicare fraud case dismissed by the Sixth Circuit. The court made a similar request earlier this year in Johnson v. Bethany Hospice, another healthcare fraud case that was dismissed by the Eleventh Circuit. Court observers note that nearly a decade has passed since the Supreme Court has asked the solicitor general to weigh in on Rule 9(b) in an FCA context.
During an interview, Nichols Liu LLP partner Bob Rhoad said he believes there’s a high chance the court will grant certiorari in one or both cases. “It demonstrates that … they view this as a true split that will not resolve on its own,” Rhoad remarked. He also suggested that the outcome could prove as significant as the Supreme Court’s decision in Escobar. “If the court takes up this issue, the decision will be in the same category as the Escobar decision,” Rhoad said. “It’ll be a game-changer.”
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