Courts have uniformly held that False Claims Act qui tam relators must plead their allegations with specificity to satisfy the heightened Rule 9(b) pleading standard. Over the years, however, the Eleventh Circuit has embraced the most draconian reading of Rule 9(b), requiring relators to identify actual claims submitted to the government.
Recently, the Eleventh Circuit softened from this stance, when it held that a relator could proceed without claims evidence when the relator (whistleblower) had firsthand knowledge of the claim submissions. While this was an unpublished opinion, it may be swaying the lower courts in Circuit, nonetheless.
The most recent example occurred in the Middle District of Florida, where the court denied a motion to dismiss a qui tam action under Rule 9(b), even when the relator did not have firsthand knowledge of the claim submissions. In that case, the relator was a commercial real estate appraiser who supposedly built his qui tam action against a Florida hospital after reviewing a “publicly recorded summary of a ground lease.” Here, the hospital allegedly gave referring physicians various remuneration, including free parking, rent concessions, and valet services.
The court agreed with the relator’s argument that he sufficiently pled his allegations, for the fraud alleged in this action did not depend upon the particularized billing content of specific claims. According to the court, because he alleged that every claim submitted by the parties was tainted by kickbacks, there was no requirement for the relator to provide greater detail to put them on notice.
If this trend continues, more relators might step forward in the Eleventh Circuit.
More information for whistleblowers is located at the Nolan Auerbach & White website.