The False Claims Act (FCA), 31 U.S.C. § 3729, makes it
unlawful for any person to knowingly submit a false or fraudulent
claim for payment to the government. In recent years, the
government has relied on the robust damages provisions of the FCA
(three times the damage sustained by the government, plus civil
penalties of $5,500 to $11,000 per claim) to recover billions of
dollars from contractors in both court victories and FCA
settlements. Much of the recent uptick in government enforcement
actions has resulted from the government's increasingly
aggressive assertion of what is known as the "implied
certification" theory of liability. On Friday, December 4,
2015, the Supreme Court of the United States granted review in
United States v. Universal Health Services., Inc., 780
F.3d 504 (1st Cir. 2015), cert. granted in part,
84 U.S.L.W. 30337 (U.S. Dec. 4, 2015) (No. 15-7), to determine the
validity of the implied certification theory.
