Those hoping that the Supreme Court would weigh in on and perhaps resolve the split in the US courts of appeals that currently exists regarding the pleading requirements of 9(b) in the context of False Claims Actqui tam complaints will have to keep waiting. On March 31 the Supreme court denied certiorari in US ex rel. Nathan v Takeda Pharmaceuticals, et al. This case involved the pleading requirements for qui tam, or whistleblower, cases brought under the False Claims Act (FCA).
While all circuits require qui tam complaints to allege fraud “with particularity” for the purposes of meeting 9(b)’s requirements, circuits are split on the issue of whether “particularity” requires that the relator identifyspecific false claims that were submitted for payment. The case at issue was decided by the US Court of Appeals for the Fourth Circuit, which dismissed a complaint by the qui tam relator for his failure to “allege with particularity that specific false claims were presented to the government for payment.” This failure, the court concluded, meant that the relator’s complaint failed to satisfy the pleading requirements of 9(b). The Sixth, Eight, and Eleventh Circuits follow similar standards as the one articulated by the Fourth Circuit. The First, Fifth, Seventh, and Ninth Circuits follow a more lenient standard, and have allowed qui tam claims to survive based on details of a scheme to submit false claims together with a “sufficient indicia” that false claims were submitted.
The Supreme Court invited the Solicitor General Verrilli to weigh in on whether the Court should consider the case in October of last year. He responded in February with a brief that encouraged the Court not to consider the issue yet – arguing that the question of whether a relator must identify specific false claims in order to meet 9(b) requirements is still being considered by various lower courts.