SUPREME COURT ADOPTS “IMPLIED CERTIFICATION” WITH MATERIALITY REQUIREMENT

In mid-June, the U.S. Supreme Court adopted the “implied false certification” theory of liability, which treats a contractor’s invoice or other payment request as an implied certification of compliance with relevant statutes, regulations or contract requirements that are material conditions of payments. This theory also treats the failure to disclose a violation as a misrepresentation that renders the claim “false or fraudulent,” and therefore actionable under the Civil False Claims Act, 31 U.S.C. §3729 (the “FCA”). (The FCA permits suits against government contractors if they knowingly present a materially false or fraudulent claim for payment.) The court held that the implied certification theory can be a basis for FCA liability, and can be actionable if the contractor knowing violated a requirement that the contractor knows … Continue reading