FCA Now

This is the sixth post in the Dorsey FCANow Blog’s FCA Basics Series covering the fundamentals of the False Claims Act (“FCA”), outlining FCA procedure and highlighting key facets of FCA practice.  Today’s post discusses pre-litigation matters: government investigations and voluntary self-disclosure of violations. FCA Investigations There are a few different ways the government finds out about fraudulent activity. When a relator files a qui tam action, the government concurrently receives a disclosure of material evidence from the relator, assesses the allegations, makes a delegation determination, and typically opens an investigation.  Early in the assessment process, DOJ often determines how the investigation will be staffed: (1) delegated investigations are fully delegated to the local U.S. Attorney’s Office (“USAO”); (2) monitored investigations are include some degree of reporting from the USAO to Civil Frauds, but the local USAO typically maintains primary responsibility for the investigation; or (3) joint investigations which are handled by both Civil Frauds and the USAO.  The government may also initiate an investigation based on whistleblowers who report fraudulent activity directly to the Department of Justice without filing a qui tam, public reporting or litigation, data mining, self-disclosures, or through other agency oversight activities. CIDs and Subpoenas The Department of Justice wields potent pre-trial investigative tools that are not available in other forms of litigation. One such tool is the civil investigative demand (“CID”). CIDs give the government authority to compel witnesses to produce documents, sworn testimony, and answers to interrogatories—all before a complaint is filed (or before a qui tam is unsealed).  The scope of discovery with CIDs is broad, and DOJ may serve CIDs on any organization or person the government believes has information relevant to an FCA investigation. CIDs are, however, subject to certain limitations. CIDs can only be issued before the government files a lawsuit or intervenes in qui tam suit, at which point the government’s investigative tools are largely the traditional civil discovery methods.  Additionally, the government cannot demand information protected by a grand jury subpoena or other recognized protections from disclosure of documents or information.  This includes attorney-client privileged communications, attorney work product, or Fifth Amendment-protected communications.  Courts often defer to Department of Justice authority and enforce CIDs so long as they are reasonably relevant to the investigation and follow procedural requirements. CIDs are enforced through direct action in federal district court. Additionally, many agencies, including the Department of Health and Human Services Office of Inspector General, can issue administrative subpoenas compelling production of documents or testimony relevant to FCA claims or other potential violations of regulations or statutes. Self-Disclosure “Self-disclosure” refers to a voluntary disclosure to the government of a potential FCA violation.  Some agencies, like the Department of Health and Human Services, have formal mechanisms to self-disclose potential FCA violations, whereas other agencies do not. Self-disclosure can be a valuable tool to mitigate the potential consequences of an FCA violation for a couple reasons, both legal and strategic. The FCA contains provisions that allow for a reduction in damages for voluntary disclosures of a violation of the FCA, and the Justice Manual contains similar language.  DOJ considers voluntary disclosure when evaluating the appropriate resolution of FCA violations.  While the Justice Manual does not provide clear guidance on how cooperation credit is calculated, it does require some form of credit for “proactive, timely, and voluntary” self-disclosure.  Voluntary self-disclosure may also reduce the likelihood the government demands other serious disciplinary action, such as corporate integrity agreements or administrative penalties. Voluntary self-disclosure also carries possible risks. The government will frequently conduct its own investigation in response to significant self-disclosures to verify the scope of the disclosure and potential violations.  As a result, it often behooves the self-disclosing party to undertake its own assessment of the full scope of any potential violations to ensure that the self-disclosure is as thorough and accurate as possible.

This is the fourth post in the Dorsey FCANow Blog’s FCA Basics Series covering the fundamentals of the False Claims Act (“FCA”), outlining FCA procedure, and highlighting key facets of FCA practice.  Today’s post focuses on procedural requirements, including the FCA’s statute of limitations rules, statute of repose, first-to-file rule, and public disclosure bar. FCA Statute of Limitations The statute of limitations on an FCA claim is generous—either six years after a violation “is committed”, or within three years of the date when the government learned or should have learned the facts material to the false claim.  Accordingly, disputes related to the statute of limitations tend to center on two issues: (1) when a violation is “committed” under the FCA, and (2) how to determine the date of government knowledge. Courts have taken divergent approaches to identifying when an FCA violation is “committed,” but two general approaches have emerged.  First, courts hold that the limitations period begins on the date the false claim is “submitted” to the government.  Second, other courts have extended the limitations period by determining the violation is “committed” on the date the government pays the claim. In certain circumstances, the FCA’s statute of limitations may be extended beyond the ordinary six years.  The FCA allows for a separate three-year statute of limitations when the United States first becomes aware of facts material to a FCA claim.  The three-year extended FCA limitations period does not run until material facts are known (or should be known) by a government official with authority to act in the circumstances.  Courts generally engage in a two-pronged analysis  in assessing when and whether this extended limitations period applies, asking (1) whether the facts are material to an actionable FCA claim, and (2) if the facts where known—or should have been known—to a relevant government official.  Therefore, the three-year period has the possibility of exceeding the six-year period if the violation is concealed from the government. While the FCA provides for a generous statute of limitations, it also caps the term of liability with a ten-year statute of repose barring any lawsuit more than ten years after the alleged fraud occurred. Statute of Limitations in Qui Tam Lawsuits Until fairly recently, it remained an open question whether relators could rely on the extended limitations period based on the government’s knowledge (or lack thereof) in pursuing qui tam litigation.  The United States Supreme Court addressed this question in Cochise Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S. 262 (2019). In Cochise, a relator initiated a qui tam action alleging two government contractors committed fraud on the government.  The relator filed their claim more than six years after the alleged fraud was “committed,” but within the ten-year statute of repose.  While the government declined to intervene, the government first became aware of the material facts of the alleged fraud through the relator’s suit and disclosure.  The Supreme Court held that the extended limitation period applied to the relator in the same way it would to the government.  The Court found that relators are afforded the extension based on the government’s knowledge, not their own, even when the government declines to intervene.  Somewhat counterintuitively, the result is that relators could have up to ten years to pursue claims under the False Claims Act when the government is unaware of the potential fraud.  This risk, of course, is that relators are not always privy to what information the government does or does not have related to a potential claim of fraud. Qui Tam Procedural Considerations Two other possible defenses to an FCA claim emerge in the context of timing for qui tam actions: the public disclosure bar and the first-to-file bar. The public disclosure bar prohibits relators from bringing a qui tam action based on fraud that is already publicly disclosed through judicial or administrative proceedings, government audits or investigations, or news media reporting.  The purpose of the bar is to discourage opportunistic relators bringing lawsuits that are misaligned with FCA’s whistleblower system.  Notably, there is an exception to the public disclosure bar when the person bringing the action is the original source of the information.  Under the FCA, an original source is an individual who either: (1) prior to a public disclosure, voluntarily disclosed to the government the information on which the allegations in a claim are based, or (2) has knowledge that is independent and materially adds to the publicly disclosed allegations and voluntarily provided that information to the government before filing an FCA action. The first-to-file bar prevents multiple relators from obtaining recoveries based on the same underlying facts. In effect, the result of the first-to-file bar is that the first relator in time to file a qui tam action tends to have priority when obtaining a relator’s share of the government’s recovery.  In multiple-relator disputes, relators will often seek to distinguish their claims from prior lawsuits or emphasize the unique value they contributed to the government’s recovery.  The mandate for qui tams to be filed under seal (and are frequently maintained under seal for months or years at a time) often makes it difficult for relator’s counsel to determine if they are in fact the first to file a suit.  In sum, the first-to-file bar provides an avenue for FCA defendants to avoid defending against multiple qui tam suits over the same conduct.

This is the third post in the Dorsey FCANow Blog’s FCA Basics Series covering the fundamentals of the False Claims Act (“FCA”), outlining FCA procedure, and highlighting key facets of FCA practice. Today’s post introduces the qui tam provisions of the FCA. The FCA’s Qui Tam Device Under the qui tam provisions of the FCA, private citizens—called relators—bring FCA lawsuits on behalf of the United States.  Relators are incentivized to expose and prosecute fraudulent activity because the FCA allows relators to collect a portion of the government’s recovery, whether it was obtained via settlement or through final judgment.  The number of FCA lawsuits filed by relators has increased in recent years, and qui tam cases composes a majority of all filed FCA cases. Qui tam lawsuits are a major driver of FCA settlement and judgment recoveries. In fiscal year 2024, the Department of Justice obtained over $2.9 billion in FCA recoveries. Of that $2.9 billion, approximately $2.4 billion came from qui tam lawsuits. The Qui Tam Procedure To initiate a qui tam lawsuit, a relator files a lawsuit on behalf of the United States against an organization or person allegedly defrauding the government. The lawsuit is first filed under seal and served to the U.S. Attorney in the district, meaning initially only the relator and the government know about the lawsuit and the allegations. The complaint remains under seal for at least 60 days while the Department of Justice has an opportunity to evaluate and investigate the claim. But those investigations often take a year or more. After the government completes its investigation, it generally does one of three things: (1) intervenes and takes over the case from the relator; (2) declines to intervene, leaving the relator to prosecute the claim; or (3) move to dismiss the action. When the government intervenes, it directly controls and prosecutes the action. After intervening, government may file an amended complaint adding or removing defendants and pleading new claims, particularly any unavailable to the relator due to lack of standing. The FCA also allows the government to settle the case notwithstanding the objections of the relator, so long as the court determines the settlement is “fair, adequate, and reasonable under the circumstances.” The relator remains a party to the litigation. The government may partner with the relator and their counsel in the prosecution of the case or limit the relator’s role. Decline to intervene. The government may decide after its investigation that pursuit of the litigation is not worth the investment of resources, which may or may not reflect the strength of the relator’s case. If the government declines to intervene, relators continue to prosecute the action under the FCA’s qui tam provisions and may receive a larger share of any recovery. The government remains the real party in interest and can still later seek to enter the case. The relator(s) and defendant(s) still must seek government approval of agreements to resolve the litigation, and the relator’s share of any settlement is determined by the government within the statutory range. Move for dismissal. The government may seek dismissal of a qui tam action, at the end of its investigation or at later junctures in the litigation. Relators receive notice and an opportunity to be heard. Where the government declines to intervene because it believes the case to be meritless, there is no affirmative duty under the FCA to seek dismissal. Justice Department guidance, however, instructs government attorneys to exercise the dismissal power to curb meritless or duplicative actions. As recently as 2023, the Supreme Court affirmed in United States ex rel. Polansky v. Executive Health Res., Inc., 599 U.S. 419 (2023) that broad judicial deference should generally be given to the government’s decision to dismiss qui tam A Unique Form of Litigation The FCA’s qui tam device is unique and a bit unusual. There is peculiar co-plaintiff posture created by empowering relators to sue on behalf of the United States. The requirement that a qui tam action initially be filed under seal without notice to the defendant. The statutory mandate that the government investigate the allegations. The incentive structure created by the statutory relator’s share. The FCA’s qui tam device gives rise to numerous novel legal questions. Several constitutional principles are implicated by qui tam lawsuits. The case or controversy requirement of standing doctrine exists in some tension with the relator’s lack of a particularized injury in fact. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000). Separation of powers questions arise, too. Article II’s Vesting and Take Care Clauses empower and burden the President with execution of the laws of the United States. Through the qui tam device, Congress imbues relators with prosecutorial authority, but based on the powers vested in Article I.  Similarly, Article II’s Appointments Clause applies to “inferior” officers of the United States. See Lucia v. SEC, 585 U.S. 237 (2018).  In 2023, in dissenting and concurring opinions in Polansky v. Executive Health Res., Justices Thomas, Kavanaugh, and Barrett opined “there are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interest of the United States in litigation.” Since Polansky, one federal district court has held that the Appointments Clause required that an FCA qui tam relator be appointed by the President. This case, United States ex rel. Zafirov v. Florida Medical Associates, is now before a three-judge panel in the Eleventh Circuit Court of Appeals. The Eleventh Circuit heard arguments in Zafirov on December 12, 2025, and is now poised to possibly become the first court of appeal to strike down the FCA’s qui tam provisions on constitutional grounds. Qui tam lawsuits raise other unique questions. Issues arise when multiple relators file similar qui tam claims on behalf of the government. Legal and ethical questions emerge when a relator brings a qui tam suit over fraudulent conduct the relator initiated or contributed to. Additionally, the settlement process can be complicated by potentially conflicting interests between the government and relator. Special concerns animate all stages of qui tam litigation.  Dorsey’s FCA Basics Series will cover these and more features of FCA litigation in upcoming posts.

On Monday, May 19, 2025, Department of Justice (“DOJ”) Deputy Attorney General Todd Blanche issued a memorandum establishing the “Civil Rights Fraud Initiative” (the “Memorandum”), in the latest signal that DOJ intends to aggressively enforce the False Claims Act in pursuit of the administration’s goals. According to the Memorandum, DOJ has launched a joint enforcement effort between the Civil Division’s Fraud Section (“Civil Frauds”) and the Civil Rights Division (“Civil Rights”), which “will utilize the False Claims Act to investigate and, as appropriate, pursue claims against any recipient of federal funds that knowingly violates federal civil rights laws.” The Memorandum signals that DOJ intends to adopt a dramatically different interpretation of federal contractors’ and federal funds recipients’ civil rights obligations from prior administrations. For instance, the Memorandum specifically identifies universities that receive federal funding as potential targets of the Civil Rights Fraud Initiative, and outlines four examples of conduct that “could violate the False Claims Act:” “Encourag[ing] antisemitism,” though neither term is defined; “Refus[ing] to protect Jewish students;” “Allow[ing] men to intrude into women’s bathrooms;” or “Requir[ing] women to compete against men in athletic competitions.” The Memorandum also re-emphasizes that Diversity, Equity, and Inclusion (“DEI”) initiatives are an enforcement priority for DOJ. Citing to Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, the Memorandum reiterates that certifying compliance with civil rights laws while “knowingly engaging in racist preferences, mandates, policies, programs, and activities, including through [DEI] programs that assign benefits or burdens on race, ethnicity, or national origin,” also implicates the False Claims Act. The Civil Rights Fraud Initiative may extend beyond mere civil liability. The Memorandum provides that both Civil Frauds and Civil Rights will “engage with” DOJ’s Criminal Division. The Memorandum also encourages qui tam litigation as a means to achieve DOJ’s goals. What Happens Next? It is highly likely that in the coming weeks and months, DOJ will issue Civil Investigative Demands (“CIDs”) to an increasing number of universities, public school districts, contractors, grant recipients, and other entities that receive federal funds. CIDs essentially act as subpoenas to facilitate investigation of potential False Claims Act violations, and based upon the priorities outlined in the Memorandum, such CIDs will likely demand information, documents, or interviews related to DEI, antisemitism, and trans-inclusivity policies, practices, programs, and activities. It is similarly likely that such investigative and/or litigation activity will result in courts being asked to decide whether the administration’s interpretations of federal civil rights obligations are consistent with the law. There is reason to suspect that courts may be skeptical of the administration’s application of the law, as even the examples articulated in the Memorandum could be read to contradict Supreme Court precedent on the scope of “sex discrimination” under Bostock v. Clayton County, 590 U.S. 644 (2020), which held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on sexual orientation or gender identity. In the meantime, however, many recipients of federal funds will likely be subject to extensive investigative efforts and potential litigation based upon DOJ’s new Civil Rights Fraud Initiative. What Federal Fund Recipients Should Do Now The Memorandum marks the latest and most concrete signal that DOJ intends to leverage the False Claims Act to target institutions of higher education, contractors, and others that do business with the federal government that the administration alleges violate civil rights laws. Although the False Claims Act’s statute of limitations extends between six and ten years, federal fund recipients can and should take immediate steps to (i) reduce the likelihood that they become the target of a federal investigation; and (ii) assess and limit the scope of liability if such an investigation does occur. For instance, organizations should: Conduct a thorough review of all DEI-related policies and practices to ensure that practices and programs do not differentiate based on protected characteristics. This can include hiring, employee resource groups, contracting, grant funding, university admissions, and much more. Assess current practices as they relate to religion-based harassment and speech. Now is the time to determine if your policies and practices make clear that religion-based harassment or discrimination are appropriately prohibited and responded to. For institutions of higher education, policies should strike a careful balance between permitting the free expression of students, faculty, and staff, and ensuring that others are free from discriminatory harassment. Analyze bathroom, athletics, and other trans-inclusive policies to determine the scope of potential risk, and if there are changes that could be made to reduce risk consistent with your organization’s goals. If your organization receives a Civil Investigative Demand, closely review it and ensure that you understand the scope of it—including understanding that receipt of a CID likely indicates an active civil fraud investigation against the organization. In addition, depending on past practices and the scope of federal funds received, some recipients of federal funds may benefit from a preemptive review of past and current policies and practices to determine exposure, if any, to potential False Claims Act liability. The False Claims Act provides for treble damages plus penalties to the federal government, but DOJ has given credit for self-disclosure and cooperation when entities proactively disclose potential violations. Federal fund recipients should consider whether such a review and potential disclosure could be in their best interests.

On June 1, 2023, a unanimous Supreme Court decision sought to clarify the meaning of “scienter” in the FCA context, which deals with the defendant’s knowledge (or lack thereof) that a claim for payment was false and intent to submit the false claim.  See United States ex rel. Schutte v. SuperValu Inc., 143 S. Ct. 1391 (2023) (“SuperValu”).  There, the Court ruled that “[f]or scienter, it is enough if respondents believed that their claims were not accurate.”  Id. at 1404.  According to the SuperValu decision, only that subjective belief as to the claim’s falsity matters, and whether there is an “objectively reasonable” explanation for the false claim is irrelevant.  Id. at 1399 (“The FCA’s scienter element refers to respondents’ knowledge and subjective beliefs—not to what an objectively reasonable person may have known or believed.”). While explaining the basis for the decision, Justice Thomas wrote that “the FCA’s standards focus primarily on what respondents thought and believed,” discussing how the three different FCA knowledge standards—actual knowledge, deliberate ignorance, and reckless disregard—each rely on the defendant’s subjective knowledge.  Id. at 1400-01.  Describing “reckless disregard” in the FCA context, Justice Thomas explained that the term “captures defendants who are conscious of a substantial and unjustifiable risk that their claims are false, but submit the claims anyway.”  Id. That sentence is already being used to argue that SuperValu heightened the government’s burden when it is attempting to prove reckless disregard—that to establish reckless disregard the government must show that the defendant was, as Justice Thomas described, “conscious of a substantial and unjustifiable risk that their claims are false.”  If courts rely on this as the standard for establishing reckless disregard in the future, it could heighten the government's burden as compared to tests currently used by courts.  For example, in July 2022 the Middle District of Georgia described the reckless disregard standard in the FCA context as when the defendant “knows or has reason to know of facts that would lead a reasonable person to realize that harm like a false claim is the likely result of the relevant act.” United States ex rel. Hockaday v. Athens Orthopedic Clinic, P.A., 616 F. Supp. 3d 1339, 1354 (M.D. Ga. 2022) (quoting Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1058 (11th Cir. 2015)) (cleaned up). As one example of how defendants are already using the Court’s language, in a June 23 brief to the Western District of Virginia District Court discussing the impact of the SuperValu decision, the defendants in the Miller case contended that “[t]he Supreme Court clarified that the FCA’s ‘reckless disregard’ standard ‘captures defendants who are [1] conscious of a [2] substantial and [3] unjustifiable risk that their claims are false, but submit them anyway.’”  See, e.g., United States ex rel. Miller v. Reckitt Benckiser Group PLC, 1:15-cv-00017, Dkt. No. 149 at 10-11 (W.D. Va. July 7, 2023).  DOJ responded that there is no three-part test to establish reckless disregard, and instead the effect of the SuperValu decision is simply rejecting any argument that the FCA’s scienter element incorporates an objective test.  Id., Dkt. No. 150 at 3.  According to DOJ, the Court was not “establishing new and restrictive criteria” to show reckless disregard, but was merely “summarizing” existing case law.  Id. The Western District of Virginia has not yet made a ruling relevant to these arguments, but the eventual ruling will be one of the first to test a potential new argument available to FCA defendants resulting from the SuperValu decision, and may provide an additional hurdle for the government to prove reckless disregard.

On November 30, 2022, the Third Circuit Court of Appeals vacated dismissal of a retaliation action brought by Don Ascolese (“Ascolese”) under the False Claims Act (“FCA”).  See United States ex rel. Don Ascolese v. Shoemaker Constr. Co., No. 21-2899, ECF No. 30 (3d Cir. 2022) (“3d Cir. Opinion”). In the complaint before the lower court, Ascolese alleged that Shoemaker Construction Co., McDonough Bolyard Peck (“MBP”), and Shoemaker Synterra JV falsely certified construction work in a public housing project for the Philadelphia Housing Authority (“PHA”) such that the project was not in compliance with build specifications or in accordance with established building and safety codes. See United States ex rel. Don Ascolese v. Shoemaker Constr. Co., No 2:18-cv-01864-MSG, ECF No. 26 (E.D. Penn. May 3, 2018).  Ascolese also claimed he was fired for raising the issue internally, which allegedly violated the FCA’s anti-retaliation provisions because whistleblowing is a protected activity.  Id. In response to the allegations, all three Defendants moved to dismiss all claims on the basis that Ascolese’s complaint failed to meet threshold-pleading requirements.  On April 19, 2021, the District Court dismissed the vast majority of Ascolese’s claims against the Defendants, including dismissing all retaliation claims.  Id. at ECF No. 42.  In finding Ascolese’s retaliation claims were not plausibly plead, the District Court explained that Ascolese had not demonstrated that MBP had knowledge that Ascolese was engaging in protected conduct and that because Ascolese was not an employee of Shoemaker Construction or Shoemaker Synterra JV, as a matter of law Ascolese could not pursue a claim for retaliation against them.  Id. at 22-24. Following dismissal of his claims for retaliation, Ascolese moved for leave to file a Second Amended Complaint, which MBP opposed.  The District Court denied the motion, finding that Ascolese had failed to plead “reliable indicia” for the court to infer false claims were submitted to MBP, and that Ascolese had merely “re-package[d]” his previously deficient claims of retaliation.  Id. at ECF No. 48.  Ascolese appealed. In an opinion dated November 30, 2022, the Third Circuit Court of Appeals vacated the District Court’s decision to deny Ascolese the opportunity to file a Second Amended Complaint, explaining that the District Court did not take into consideration statutory changes to the FCA retaliation standard introduced by Congress in 2009 and 2010.  3d Cir. Opinion at 3-4. The Third Circuit explained that Congress had previously “expanded the universe of protected conduct to whistleblowers who lawfully try to stop one or more violations of the Act, without regard to whether their conduct advances a qui tam suit under the Act.”  Id. at 4.  In effect, Congress had taken steps not only to protect “potential or actual” qui tam actions, but also to remedy misconduct “whether or not such steps are clearly in furtherance of a potential or actual qui tam action.”  Id. at 5.  Therefore, the Third Circuit explained, the 2009 and 2010 FCA amendments expanded the anti-retaliation standard to protect “lawful acts in furtherance of either an action under the FCA or other efforts to stop 1 or more violations of the Act.”  Id. at 12 (emphasis in the original). Under the new standard, the Third Circuit found that Ascolese had sufficiently plead that he engaged in “protected conduct” when he “went outside of his chain of command to report his concerns of fraudulent work to the PHA,” raised project “issues and safety concerns” with superiors at MBP and to PHA, and sufficiently plead that MBP was on notice of his protected conduct and retaliated against him because of it.  Id. at 14-16. Accordingly, the Third Circuit vacated the District Court’s denial of Ascolese’s motion for leave to file a Second Amended Complaint and remanded to the District Court. Companies and practitioners should familiarize themselves with the ever-changing standards implemented by Congress and the courts, especially in jurisdictions that have not yet explicitly adopted the post-amendment standards for retaliation under the FCA. Understanding the scope of the amendments, and what is required to allege retaliation, will be vital for companies to ensure they are not running afoul of the expanded standards under the FCA.

The Supreme Court recently denied three petitions for writs of certiorari, opting not to clarify the heightened pleading requirements for allegations of fraud under the False Claims Act ("FCA"). The cases for which certiorari was denied are Molina Healthcare of Illinois v. Prose, No. 21-1145; United States ex rel. Owsley v. Fazzi Associates, Inc., No. 21-936; and Johnson v. Bethany Hospice LLC, No. 21-462. For allegations of fraud, which includes allegations under the FCA, the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) require that a party state “with particularity the circumstances constituting fraud or mistake.” The party alleging “false claims” must allege that the defendant submitted false claims or caused false claims to be submitted to the government. To gain clarity as to the requirements of Rule 9(b), three petitioners sought certiorari, asking the Supreme Court to weigh in and clarify the detail required to meet the heighted Rule 9(b) standard at the outset of an FCA dispute: more specifically, the petitioners asked the courts to clarify whether relators must allege specific details of false claims allegedly submitted to the government for payment. In applying Rule 9(b) to FCA claims at the pleading stage, federal courts have adopted a variety of standards interpreting the level of detail necessary to adequately plead such claims. This disparity is exemplified by the circuit split between the Ninth and Sixth Circuits. The Ninth Circuit takes a relatively broad view of Rule 9(b), allowing relators to plead particular details of a scheme to submit false claims paired with reliable indicia that false claims were in fact submitted as a result of the scheme. In contrast, the Sixth Circuit enforces a more stringent standard, placing a greater emphasis on the specificity required to plead FCA claims, requiring pleading either specific false claims or specific facts that lead to a strong inference that a false claim was submitted, based on a relator’s personal billing-related knowledge. But instead of addressing the merits of the three petitions, the United States Supreme Court denied certiorari across the board, adopting the Solicitor General’s recommendation that the Court refrain from weighing in. According to the Solicitor General, the various circuit courts’ approaches have “largely converged on an approach that allows relators either to identify specific false claims or to plead other sufficiently reliable indicia supporting a strong reference that false claims were submitted to the government.” (Emphasis in original). The Solicitor General rebutted the contention that the courts are inconsistently applying Rule 9(b), noting that any difference “simply reflect[s] courts’ application of a fact-intensive standard to a range of different types of allegations.” The Solicitor General’s recommendation, and the Court’s adoption thereof, does not provide the clarity petitioners sought and arguably encourages “forum shopping” in which relators seek out jurisdictions in which Rule 9(b) is interpreted less rigorously – but the denial may also have operated to avoid the possibility that Court, should it have granted certiorari, would have propounded a relatively strict pleading standard for all federal courts. Whether the Supreme Court will ultimately address Rule 9(b)’s requirements for FCA claims remains an open question. For now, the pleading standard will continue to fluctuate based on the court before which such a claim is made.