1 Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S.Ct. 1989, 1995 (2016).

2 Id. (holding that the implied certification theory can be a basis for liability); id. at 2002 (calling the Fca's materiality and scienter requirements “rigorous”).

3 Compare Phillips & Cohen Attorneys Discuss Supreme Court Ruling in Whistleblower Case, Phillips & Cohen LLP (June 16, 2016), http://www.phillipsandcohen.com/2016/Supreme-Court-False-Claims-Act-Escobar-Universal-Health-whistleblower.shtml (calling the ruling “fantastic” for whistleblowers) with In Escobar, Supreme Court Upholds False Claims Act's Implied Certification Theory, Skadden (June 17, 2016), https://www.skadden.com/insights/escobar-supreme-court-upholds-false-claims-acts-implied-certification-theory (calling the ruling “helpful to the defense”).

4 136 S.Ct. at 1997.

5 Id.

6 Id.

7 Id.

8 31 U.S.C. § 3729 (a) (1) (A).

9 Complaint and Claim for Jury Trial Filed Under Seal at 23-33, United States ex rel. Escobar, 2014 WL 1271757 (D. Mass. Mar. 26, 2014) (No. 1:11-cv-11170-DPW); Escobar, 136 S.Ct. at 1997-98.

10 2014 WL 1271757 at *1 (dismissing the case), *10 (giving the rationale that the plaintiff's complaint does not allege that compliance was a precondition of payment).

11 780 F.3d 504, 512-13 (2015).

12 Escobar, 136 S.Ct. at 1998-99 (citing United States v. Sanford-Brown, Ltd., 788 F.3d 696, 711-12 (7th Cir. 2015) (rejecting implied certification) reversed in part 2016 WL 6205746 (7th Cir. 2016) and Mikes v. Straus, 274 F.3d 687, 700 (2d Cir. 2001) (limiting the reach of implied certification)).

13 Id. at 2001.

14 Id. at 2000-01.

15 Id. at 2003. See also id. at 2002 (calling the FCA's materiality requirement, along with its scienter requirement, “rigorous.”)

16 31 U.S.C. 3729 (b)(4).

17 Escobar, 136 S.Ct. at 2002-03 (quoting the Restatement (Second) of Torts § 538, at 80 (1977)).

18 Id. at 2003-04.

19 Id. at 2003.

20 Id.

21 Id. at 2001-02 (giving the example of a government contract to buy firearms); id. at 2004 (finding that the FCA does not “adopt such an extraordinarily expansive view of liability” as to hold contractors liable for failing to buy American-made staplers”).

22 780 F.3d 504, 514, 514 n.14 (holding that relators adequately pleaded falsity when they alleged defendants “misrepresented compliance with a condition of payment” while implicitly communicating that they were entitled to be paid).

23 136 S.Ct. at 2004.

24 E.g., Harold B. Hilborn, Supreme Court Holds Implied Certifications Create False Claims Act Liability, National Law Review, http://www.natlawreview.com/article/supreme-court-holds-implied-certifications-create-false-claims-act-liability (Sept. 1, 2016) (predicting defendants will find it harder to “secure dismissal of FCA lawsuits at their outset”); Joan H. Krause, Reflections on Certification, Interpretation and the Quest for Fraud that “Counts” Under the False Claims Act, U. Illinois L. Rev. (forthcoming) (“Proving that the defendant's misrepresentation actually affected the outcome, as the Court appears to require, will demand a far more fact-intensive inquiry into the government's payment procedures, not just for this defendant but potentially for similarly situated providers as well.”)

25 136 S.Ct at 2004 n.6.

26 Compare id. at 2003-04 (apparently encouraging inquiry into government's payment decisions) with id. at 2004 n.6.