The US Supreme Court's decision one year ago in Universal Health Services v. Escobar has jolted False Claims Act litigation by creating a new approach to "implied certification" cases involving undisclosed noncompliance. In a June 16, 2017, Law360 article, lawyers talk about key ways in which the decision has been applied.
Squire Patton Boggs senior associate Rebecca Worthington commented: "An unsettled issue is whether it is mandatory to satisfy Escobar’s two-part test for falsity, i.e., that the claim does not merely request payment but also makes specific representations, and the failure to disclose noncompliance makes the representations misleading. One district court has certified the question to the Ninth Circuit, noting the uncertainty among district courts on this issue. A district court for the District of Columbia, however, views the issue as resolved, noting that the DC Circuit held in a pre-Escobar decision that all the government must show is that a defendant withheld information about its noncompliance, and that a specific representation is not required."