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Sins of Omission: U.S. Supreme Court approves implied false certification

Under the doctrine of “implied false certification,” a plaintiff in a False Claims Act suit can claim that a government contract impliedly made a false certification by requesting payment without disclosing that it is in violation of government requirements. Before June 16, 2016, the U.S. Circuit Courts of Appeal were split on the question of whether implied false certification was a basis for liability under the False Claims Act. While the Fifth Circuit and Seventh Circuit held that implied false certification was not a permissible basis for liability, several circuits (including the Eleventh, which includes Alabama) held that it was. In Univ. Health Servs., Inc. v. United States ex rel. Escobar, 579 U.S. ____ (2016) (No. 15-7 October 2015 term) the U.S. Supreme Court resolved this circuit split, and held that implied false certification may, in certain circumstances, be a basis for False Claims Act liability.

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