Earlier this week, the U.S. Supreme Court solicited input from the Department of Justice (DOJ) regarding the scrutiny with which courts should view False Claims Act complaints—particularly those filed by private plaintiff-relators.

Because a complaint filed under the False Claims Act accuses the defendant of committing fraud against the government, it must satisfy the heightened pleading standards of Federal Rule 9(b), which demand more “particularity” than normal pleadings.

In recent years, lower courts have disagreed on what details are necessary to satisfy the Rule 9(b) standard. Some courts, like those in the Sixth and Eleventh Circuits, require that the complaint includes at least one example of a false claim that was submitted for reimbursement. Advocates of this interpretation argue that it is necessary to prevent fishing expeditions and meritless claims brought by would-be relators from proceeding to what is very often a long and expensive discovery process.

Other courts, like those in the Fifth and Ninth Circuits, require that the complaint provides only “reliable indicia” that false claims were submitted.  Advocates of this interpretation argue that requiring example claims is too limiting because many whistleblowers who uncover fraud may not have access to the defendant’s billing systems, even though they have personally witnessed the fraud scheme in practice.

Although this issue does not often arise in cases where the DOJ has chosen to intervene—because the government has the right to conduct sealed investigations and request necessary documentation, including claims data, before filings its complaint—it is often raised in non-intervened cases where the relator has chosen to take the case forward on behalf of the United States.

Two such cases, U.S. ex rel. Owsley v. Fazzi Associates, Inc., and Johnson v. Bethany Hospice & Palliative Care LLC, have submitted petitions for certiorari to the Supreme Court, asking the high court to weigh in and resolve the split. In January, the Court requested the Solicitor General’s input in the Bethany Hospice case, which drew speculation that the Court might finally take the issue up. And then, on Monday, the Court invited the Solicitor General to file a brief “expressing the views of the United States” in the Fazzi Associates case.

Whether the Court will grant either petition is still unknown, but if the Court takes up either case, it could have a significant impact on False Claims Act qui tam suits across the country, as this is a common issue in most non-intervened False Claims Act litigation.

To read more about the application of Rule 9(b), check our prior posts on the topic.