Fifth Circuit Clarifies Meaning Of "False" Claim Under False Claims Act

The recent explosion of cases arising under the False Claims Act ("FCA")¹ certainly has caught the attention of those who do business with the government, whether health care providers, government contractors, or others. Increasingly, qui tam relators and the government attempt to assert ever more expansive theories of the FCA's reach and more aggressive theories of the significant damages that are available under the FCA. Those suits, in turn, have forced some courts to wrestle with the distinction between a commonplace breach of contract, on one hand, and a knowing fraud on the government that gives rise to FCA liability, on the other.² The recent decision from the U.S. Court of Appeals for the Fifth Circuit in United States ex rel. Spicer v. Westbrook, _ F.3d _, 2014 U.S. App. Lexis 8432 (5th Cir. May 5, 2014) addressed that tension, and provides new ammunition to companies seeking to dismiss FCA suits where the complaint fails to plead a false certification of