False Claims Act opponents regularly argue that relators must show up at the courthouse steps with the claims documentation in hand. However, the Government does not need the relators’ assistance in locating claims; the Government needs relators to detail the inner workings of a complex fraud scheme. Amazingly enough, a few courts have bought this argument and squelched meritorious FCA cases simply because the relator did not have access to the underlying invoice.
These court decisions have failed to grasp the real-world limitations that prevent relators from meeting such a strict evidentiary standard at the pleading stage. Relators typically know the intricacies of a fraud scheme, but not necessarily the specifics of an invoice that were later submitted to obtain payment for the fraudulent activity. Conversely, billing clerks may have access to the requisite invoices, but they typically do not have knowledge of the underlying fraud scheme. Most assuredly, Congress did not intend to limit the False Claims Act to billing clerks.
Thankfully, many courts have adopted a more commonsense application of Rule 9(b). Indeed, the recent trend has swung in the direction of a more favorable reading of Rule 9(b). At the next available opportunity, the Supreme Court should join this chorus.