False Claims Act “Implied Certification” Update: Supreme Court Oral Argument Forecasts Continued Vitality of Controversial Doctrine

The U.S. Supreme Court heard oral argument on April 19, 2016, in United Health Services v. United States ex rel. Escobar, No. 15-7, a case expected to resolve the current split among federal appellate courts on the so-called “implied certification” theory of liability under the federal False Claims Act (FCA). Although government contractors are hoping the Supreme Court invalidates implied certification altogether, this outcome seems increasingly unlikely after the oral argument. Rather, the Supreme Court may be expected to endorse at least some version of implied certification liability.