May 23, 2014 Articles

Pleading a Claim under the False Claims Act

Learn how to navigate this important but strict statute from the Civil War era

By Alan Levins and Alison Cubre

The False Claims Act (FCA), codified at 31 U.S.C. §§ 3729–3733, receives a lot of attention for the multimillion and multibillion settlements reached for fraudulent billing practices. The FCA has also garnered attention for its strict pleading requirements. Many litigants cannot plead a claim under the FCA because they are unable to meet the heightened pleading standard under Federal Rule of Civil Procedure 9(b). This heightened standard has been the subject of much litigation: Currently, circuit courts are split on how “specific” the allegations must be in order for a claim to withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b). Many recent decisions have been less lenient with litigants, thus prohibiting claims from prosecution and making it difficult for litigants to meet the standards required to plead fraud with particularity. Courts have also narrowly interpreted the standards for employees claiming retaliation for engaging in activities “in furtherance” of the FCA, thus restricting the ability of those claims from going forward at the pleading stage.

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