Implied certification under the FCA: unanimous Supreme Court raises the bar

A VIABLE THEORY - IN THEORY Two Conditions for a Viable Theory of Falsity Interpreting the FCA's prohibition of "false or fraudulent" claims under the common law definition of fraud, the Court held that a defendant can be liable for a failure to disclose noncompliance with a legal requirement only if two conditions are satisfied: * the defendant's claim not only requests payment but makes "specific representations about the goods or services provided;" and * the defendant's failure to disclose noncompliance with legal requirements makes those representations misleading. [...]the Court held that the facility's "specific representations" about the services for which it billed were an implicit representation that the facility was entitled to payment. * The opinion does not address how courts should apply the common law definition of fraud in other cases.\n Express Condition of Payment Is Relevant, Not Conclusive * The relator and the government argued that FCA liability arises whenever someone bills the government for an item or service while violating a legal requirement that is an express condition of payment under law, regulation, or contract. * The Court rejected this argument, concluding that "not every undisclosed violation of an express condition of payment automatically triggers liability."