All jurisdictions have held that False Claims Act qui tam relators must clear a heightened Rule 9(b) pleading standard. Most courts have held that relators can satisfy this standard by simply alleging particular details of the fraud scheme paired with reliable indicia that that claims were actually submitted to the government. The Eleventh Circuit, however, has moored itself to an aberrant 2002 decision that required relators to identify actual claims at the pleading stage of litigation.
Based on a recent unpublished opinion, the Eleventh Circuit might be stepping away from its extreme Rule 9(b) pleading standard. Specifically, in a healthcare fraud qui tam action filed against Health Management Associates (HMA), the court reversed in part the dismissal of the relator’s qui tam action under Rule 9(b). The court held that there was sufficient indicia of reliability that false claims were actually submitted for the time period in which the relator was an HMA senior-management employee. Conversely, the court affirmed the dismissal of claims under Rule 9(b) for the time period after the relator’s employment.
While this was an unpublished opinion, it signals that the Eleventh Circuit might be leaning more toward the other jurisdictions, which have increasingly adopted a more lenient application of Rule 9(b).
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