Eighth Circuit Breathes New Life Into Rule 9(b)

Adding to the already-muddled case law regarding precisely what must be pleaded with particularity under Rule 9(b), in a 2-1 decision, the Eighth Circuit recently breathed life into the requirement that a relator who does not identify representative false claims must nonetheless at least plead facts that provide "reliable indicia that lead to a strong inference that claims were actually submitted." In United States ex rel. Strubbe v. Crawford County Memorial Hospital, 915 F.3d 1158 (2019), the majority held that even alleged statements by management that certain policies were enacted for billing and cost reimbursement purposes showed only a "possibility" that claims were submitted, which is insufficient under Rule 9(b) to plead a False Claims Act claim.