HomeWebcastIt’s Mandatory! Litigation Tactics in Light of the Recent Escobar False Claims Act (FCA) Test Ruling
Online CLE Escobar FCA CLE

It’s Mandatory! Litigation Tactics in Light of the Recent Escobar False Claims Act (FCA) Test Ruling

Live Webcast Date: Tuesday, March 12, 2019 from 12:00 pm to 1:00 pm (ET)
CLE Government Contracts LawRecording

Online CLE Escobar FCA

Join us for this Knowledge Group Online CLE Escobar FCA Webinar. In its U.S. ex rel. Scott Rose, et al. v. Stephens Institute decision, the Ninth Circuit ruled that Escobar’s two-part falsity test for implied certification is mandatory in establishing liability in False Claims Act (FCA) cases.

In this way, Stephens Institute may prove to be useful to certain FCA defendants.  However, the Stephens Institute court expressed skepticism about whether Escobar’s two-part test establishes the only way to establish implied certification liability. This latest in a growing body of case law interpreting Escobar illustrate the need for plaintiffs and defendants to keep themselves abreast of future changes and developments concerning this case. In this evolving legal climate, it is imperative to develop effective litigation tactics and strategies in response to these updates.

In this Webcast, a panel of distinguished professionals and thought leaders will help plaintiffs and defendants understand the important aspects of this significant topic. They will provide an in-depth discussion of Stephens Institute,  the recent Escobar FCA liability test ruling. Speakers will also offer best practices in developing and implementing effective litigation tactics and strategies.

Key topics include:

  • U.S. ex rel. Scott Rose, et al. v. Stephens Institute : An Overview
  • The Escobar Falsity Test Under the Microscope
  • Other Notable Cases and Rulings
  • Current Trends
  • Risks and Pitfalls
  • Litigation Strategies
  • 2019 Outlook

Agenda

Sarah Tremont, Attorney
Covington & Burling LLP

AND

Terra Fulham, Attorney
Covington & Burling LLP
  • Background on False Claims Act
  • Escobar Ruling on Implied Certification Liability
    • The Supreme Court in Escobar confirmed that “implied certification” can give rise to liability under the False Claims Act.
    • Specifically, the Court held: “[T]he implied certification theory can be a basis for liability, at least where two conditions are satisfied: first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.”  Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2001 (2016).
  • Circuit Split on Implied Certification Liability Post-Escobar
    • The Court’s decision in Escobar has given rise to a circuit split on whether the two factors elucidated by the court are mandatory for establishing an implied certification claim.
    • First, Seventh, Ninth Circuits have held that the test is mandatory.  The Ninth Circuit is the latest court to rule on this issue in the recent decision United States ex rel. Rose v. Stephens Inst., 909 F.3d 1012 (9th Cir. Aug. 24, 2018), as amended (Nov. 26, 2018).
    • Fourth Circuit and D.C. District Court have taken a more expansive view that the Court’s test is sufficient, but not necessary, to establish liability.
  • Analysis/Practice Pointers

Who Should Attend

  • Attorneys General
  • False Claims Act Lawyers
  • In-house Counsel
  • Litigation Officers
  • Chief Compliance Officers
  • Senior Management
  • Public and Private Companies
  • Other Related and Interested Professionals

Online CLE Escobar FCA

Sarah Tremont, Attorney
Covington & Burling LLP

AND

Terra Fulham, Attorney
Covington & Burling LLP
  • Background on False Claims Act
  • Escobar Ruling on Implied Certification Liability
    • The Supreme Court in Escobar confirmed that “implied certification” can give rise to liability under the False Claims Act.
    • Specifically, the Court held: “[T]he implied certification theory can be a basis for liability, at least where two conditions are satisfied: first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.”  Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2001 (2016).
  • Circuit Split on Implied Certification Liability Post-Escobar
    • The Court’s decision in Escobar has given rise to a circuit split on whether the two factors elucidated by the court are mandatory for establishing an implied certification claim.
    • First, Seventh, Ninth Circuits have held that the test is mandatory.  The Ninth Circuit is the latest court to rule on this issue in the recent decision United States ex rel. Rose v. Stephens Inst., 909 F.3d 1012 (9th Cir. Aug. 24, 2018), as amended (Nov. 26, 2018).
    • Fourth Circuit and D.C. District Court have taken a more expansive view that the Court’s test is sufficient, but not necessary, to establish liability.
  • Analysis/Practice Pointers

Online CLE Escobar FCA

Online CLE Escobar FCA

Sarah TremontAttorneyCovington & Burling LLP

Sarah Tremont represents clients in complex litigations and investigations, with particular expertise in defending government contractors against allegations of fraud and False Claims Act violations. She has experience representing clients at all stages of internal and government investigations, including conducting witness interviews, managing government subpoena and CID responses, defending witnesses in government interviews and CID testimony, and advocating before government enforcement officials. She has also represented clients in a variety of litigation matters during motions practice, discovery, trial, and appeals.

Online CLE Escobar FCA

Terra FulhamAttorneyCovington & Burling LLP

Terra Fulham represents corporate and individual clients in complex litigations and investigations, with particular expertise in defending government contractors against allegations of fraud and False Claims Act violations. She has experience representing clients at all stages of internal and government investigations, including conducting witness interviews, managing government subpoena and CID responses, defending witnesses in government interviews, and advocating before government enforcement officials.

She has also represented clients in a variety of litigation matters during motions practice, discovery, and trial and final hearings.

Online CLE Escobar FCA

Course Level:
   Intermediate

Advance Preparation:
   Print and review course materials

Method Of Presentation:
   On-demand Webcast

Prerequisite:
   Experience in government fraud litigation

Course Code:
   147798

NY Category of CLE Credit:
   Areas of Professional Practice

Total Credit:
    1.0 CLE

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About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

Covington has a full-service Government Contracts practice with a core team of over 50 lawyers. The Government Contracts practice advises on the full range of issues that contractors face, including high-stake bid protests that directly impact the bottom line, cost issues and performance disputes that affect profitability and reputation, investigations with potential criminal and national security implications, suspension and debarment and the loss of ability to compete for future government work, and nuts and bolts regulatory issues that impact a contractor’s day-to-day operations. Covington handles many specialized government contracts issues with which no other firm has the range of expertise, such as the regulatory aspects of mergers and acquisitions, complex intellectual property and data issues arising under the FAR and the Bayh-Dole Act, Cost Accounting Standards (CAS) issues, thorny cybersecurity issues and breaches, and “switching sides” trade secret matters.

Website: http://www.cov.com/

Sarah Tremont represents clients in complex litigations and investigations, with particular expertise in defending government contractors against allegations of fraud and False Claims Act violations. She has experience representing clients at all stages of internal and government investigations, including conducting witness interviews, managing government subpoena and CID responses, defending witnesses in government interviews and CID testimony, and advocating before government enforcement officials. She has also represented clients in a variety of litigation matters during motions practice, discovery, trial, and appeals.

Terra Fulham represents corporate and individual clients in complex litigations and investigations, with particular expertise in defending government contractors against allegations of fraud and False Claims Act violations. She has experience representing clients at all stages of internal and government investigations, including conducting witness interviews, managing government subpoena and CID responses, defending witnesses in government interviews, and advocating before government enforcement officials.

She has also represented clients in a variety of litigation matters during motions practice, discovery, and trial and final hearings.

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