Claris Law Legal Blogging Community

Name:

E-mail:

Phone Number:

Zip Code:

Your Question:

Editor: Mike Bothwell
Profession: Qui Tam Attorney

Category: Legal Analysis

The picture of justice blindfolded evokes the mistaken impression that all parties are equal before the law. When it comes to actions under the FCA, "it's good to be the King!"

I have long struggled with the concept that the FRCP 9(b) fraud pleading standard would be applied to a statute that expressly forbids courts from requiring proof of an intent to defraud. However, courts have not only applied the Rule 9(b) hightened pleading requirements to FCA actions, they have also consistently raised the bar on what is necessary to pass the standard--or at least they seem to do that when the whistleblowers are prosecuting cases under the qui tam portion of the FCA. One of the highwater marks was the per curiam decision in the case of U.S. ex rel. Corsello v. Lincare, 428 F.3d 1008 (11th Cir. 2005) where the Eleventh Circuit seemed to find that only billing employees can meet the pleading specificity required by Rule 9(b). However, in U.S. v. Capp Quality Care, Inc., Civil Action No. 05-163-P-H, 2006 U.S. Dist. Lexis 20909 (D. Me. Ap. 14, 2006), the court seemed to follow a lower standard when the government--not the whistleblower--was prosecuting the case. In Capp, the government did not plead the dates on which the allegedly improper services were billed, but rather pleaded "general statements on the issue of timing." Id. at 7. The court specifically noted, "Thus, the second amended complaint is replete with similar temporal allegations from which CAP could ascertain, in addition to the circumstances, the dates on which the Government contends CAP began providing treatments in violation of the alleged statutory and regulatory requirements." Id. at 9. This was sufficient specificity for the court. However, juxtapose this standard against the one adopted in U.S. ex rel. Clausen v. Lab Corps., 290 F.3d 1301, 1311 (11th Cir. 2002). "Of the Second Amended Complaint, which had added the conclusory statements that LabCorp submitted for specified tests on the 'date of service or within a few days thereafter,' the district court stated that the pleading 'suffers from the same defect' - a lack of specific information about the actual submission of claims to the Government. We agree with these conclusions." Id. "In reviewing Clausen's complaints and taking their allegations as true, we agree with the district court that Clausen's failure to allege with any specificity if - or when - any actual improper claims were submitted to the Government is indeed fatal to his complaints under the particular circumstances of this case." Id. at 1311-12.

The same rules do not seem to apply to all parties equally. In the end, it is the Capp rule and not the Clausen/Corsello rule that should "blindly" apply (if any).