The Expanding False Claims Act Materiality Requirement

Megan Mocho Jeschke is a Partner in Holland & Knight's Tampa office

There is a renewed focus on the government's activities for purposes of the False Claims Act (FCA) materiality analysis and as demonstrated by a number of recently issued decisions, the roster of relevant government actors is expanding.

The FCA imposes treble damages and penalties on anyone who "knowingly presents, or causes to be presented" false claims to the government, 31 U.S.C. § 3729(a)(1)(A), or "knowingly makes, uses, or causes to be made or used," false records or statements "material to a false or fraudulent claim." 31 U.S.C. § 3729(a)(1)(B).

Under the implied certification liability theory, a defendant implicitly represents compliance with relevant contractual or regulatory provisions with each request for payment; undisclosed violations may render the request for payment a false or fraudulent claim under § 3729(a)(1)(A). The Supreme Court's decision in Universal Health Services,