The U.S. courts of appeals disagree along two, perhaps three, lines over both the scope and validity of the doctrine of implied false certification under the False Claims Act. These divergences mean that motion practice and the potential for underlying liability differ depending upon where qui tam litigation is filed. The U.S. Supreme Court has before it a case that could potentially resolve the issue, and the court continues to deliberate as to whether to accept review. This article explains the implied false certification doctrine, explores the circuit split, and provides practical guidance for companies facing FCA lawsuits based on allegations of implied false certifications in view of the Supreme Court’s potential for future review and the widening split of authority in federal circuit courts.

Originally published in Law360 on November 16, 2015.