Effort To Revive Dismissed Implied Certification Claims Based On Escobar Fails On Materiality Grounds

The Supreme Court's June 2016 decision in Universal Health Services v. U.S. ex rel. Escobar was widely read as providing new support for the theory of "implied certification" liability in cases brought by Government prosecutors and qui tam relators under the federal False Claims Act (FCA), as it held that a contractor that requests payment without disclosing "violations of statutory, regulatory, or contractual requirements" may be making a false claim against the Government.

A federal judge in the District of Columbia, however, recently reaffirmed the prior dismissal of "implied certification" FCA claims brought against a materials supplier over body armor durability issues that the company allegedly kept hidden, saying the Supreme Court's holding in Escobar was not a sufficient basis to amend the previous findings.¹ The District Court stated that Escobar had not changed the "strict" requirement that any violations be "material to the Government's