Is There FCA "Objective Recklessness"? It Depends….

At this year's ACI False Claims Qui Tam Enforcement Conference's inaugural panel — Scienter After SuperValu — DOJ's Civil Fraud Deputy Chief was on the hot seat.

As our readers already know, in SuperValu, the Supreme Court shot down the defense bar's hopes of "objective reasonableness" as a scienter killer, and, in so doing, held the FCA's "knowledge" elements "focus primarily on what [defendants] thought and believed." U.S. ex rel. Schutte v. SuperValu Inc., 598 U.S. 739, 751 (2023). A plaintiff can prevail on its FCA claim by proving actual knowledge, deliberate ignorance, or recklessness, all of which turn on a defendant's subjective "awareness" of information that would render claims false. That much the Court made clear. What it left undecided was the validity of so-called "objective recklessness." After SuperValu, an objectively reasonable interpretation of an ambiguous statute or regulation cannot kill an FCA claim where there's contrary evidence of