In an advisory filing requested by the Supreme Court, DOJ suggested that circuit disagreement over the precision with which qui tam relators must identify fraudulent billing had subsided, but court watchers say the filing was less than convincing.
DOJ’s amicus brief argued the courts had mostly converged on a flexible approach to the question of how much detail relators must provide to demonstrate potential fraud. However, filings from the petitioners in the cases before the Supreme Court, as well as briefs from the U.S. Chamber of Commerce and Washington Legal Foundation, argued that the circuits were still starkly divided on the issue. While the high court is likely to give considerable weight to DOJ’s opinion, that might not be enough to clear the decks.
“There is a good likelihood that at least four justices will disregard the solicitor general’s advice and provide the necessary votes to grant certiorari,” remarked Reed Smith LLP partner Frederick Robinson. Observers also noted that DOJ itself seemed to have trouble making its own case, as the filing acknowledged multiple differences between the courts’ positions. “The brief actually makes the point that variability exists,” explained Morgan Lewis & Bockius LLP partner Katie McDermott, a former DOJ health fraud attorney. “[It] is not reassuring on the issue of a circuit split [and] may not quell the interest to review the pleading controversy in FCA actions.”
Source:
