The Supreme Court recently decided U.S. ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023). In dissent, Justice Thomas questioned the constitutionality of the qui tam regime under the False Claims Act (FCA), by which a private “relator” represents the interests of the United States in litigation. Concurring with the majority, Justices Kavanaugh and Barrett nevertheless agreed with Justice Thomas that the constitutional issue he raised should be considered in “an appropriate case.” Dykema covered the decision, including the dissent, in a previous article.Continue Reading Federal Court Tees Up False Claims Act Constitutionality Dispute
Figuring Out the FCA: Supreme Court Issues Two Decisions
In June 2023, the Supreme Court issued two opinions interpreting the False Claims Act (FCA)—U.S. ex rel. Schutte v. SuperValu, Inc., (June 1, 2023), U.S. ex rel. Proctor v. Safeway, Inc. (June 1, 2023), and U.S. ex rel. Polansky v. Executive Health Resources, Inc. (June 16, 2023).In the Supervalu/Safeway decision, which was an important victory for relators, the Court reinforced that the focus is on the subjective knowledge of a defendant for the scienter component of the FCA. In Polansky, the Court, in a ruling beneficial to defendants, held that the Government may dismiss an FCA action when it intervenes, even after the unsealing of the FCA complaint. Each decision also contains discussion about the scope of the FCA, and its statutory interpretations, which will surely lead to future challenges.
Continue Reading Figuring Out the FCA: Supreme Court Issues Two Decisions