Escobar Oral Arguments: Justices Imply Outcome – False Claims Act Implied Certification May Survive

The U.S. Supreme Court recently held oral arguments in the case of Universal Health Services, Inc. v. U.S. ex rel. Escobar, No. 15-7, which is set to decide the viability of implied certification under the FCA. As discussed in our last  update on the Escobar case, implied certification is a judicially-created theory under the FCA that establishes liability for a provider or contractor, that, although delivering or performing the materials or services claimed, violated a contract, statute or regulation as a condition of payment even though the provider or contractor did not expressly certify such compliance as a condition of payment. Implied certification has been a split issue among the circuit courts and a source of frustration for providers. Escobar's broad reach has drawn significant attention to the case, including numerous amicus briefs seeking to restrict the potential for perceived limitless exposure under the FCA. Should the Supreme Court move to strike