Implied Certification and Materiality in FCA Lawsuits: Everything You Need to Know and Do
In the wake of the Escobar case, issues on the uniformity of implied certification and materiality standards in False Claims Act (FCA) lawsuits have emerged. As the impact of the Stephens Institute ruling on the mandatory use of the two-part falsity test on implied certification is hugely affecting the litigation landscape, the lack of consensus among the courts on the nature of the test being advisory rather than mandatory has been causing ambiguity to both defendants and plaintiffs. This, along with the more stringent requirements in proving the materiality of a claim, is changing the FCA litigation landscape.
With the recent developments on the ever-evolving FCA litigation landscape, government contractors should be able to keep abreast of the changing tides and mitigate the increased risks and liabilities in the post-Escobar landscape. Being well-versed with a comprehensive knowledge of the latest trends and updates is vital to developing effective litigation procedure and strategies.
In this LIVE webcast, a panel of distinguished professionals and thought leaders will help businesses and their counsel understand the important aspects of this significant topic. They will provide an in-depth discussion of Implied Certification and Materiality in FCA Lawsuits. Speakers will also offer best practices in developing and implementing effective litigation strategies in light of the recent changes and updates on FCA litigation.
Key topics include:
- FCA Litigation Trends in 2018
- Implied Certification and Materiality in FCA Lawsuits: Examining the Nooks and Crannies
- Notable Cases and Rulings
- Risks and Pitfalls
- Practical Litigation Tips and Strategies
- 2019 Outlook
Susan R. Hershman, Senior Counsel
Greenberg Gross LLP
Steve Gombos, Attorney
Maureen C. McDonald, Attorney
Akin Gump Strauss Hauer & Feld, LLP
- Introduction re Escobar, Materiality and Implied Certification – Sue (three new slides, to introduce the topic and our presentation)
- Materiality and the “holistic” approach – Sue
- Materiality despite continued government payment – Sue
- Escobar's materiality element and government action short of denying payment – Steve
- Does the materiality inquiry differ depending on the underlying theory of liability? Some courts have held that it does. – Steve
- Open issues for future FCA actions: how will courts treat an FCA defendant’s knowledge of materiality – Plaintiff’s perspective – Sue
- Escobar's overlooked knowledge-of-materiality requirement – Steve
- Materiality and the government’s intervention/declination decision – Sue
- Materiality and the special case of one agency’s or government’s licensing/approval of a product or service for which another agency pays – Sue
- Implied certification after Escobar: Must relators meet Escobar's two conditions? – Steve
- The importance of a discovery plan for defendants in intervened and non-intervened cases – Steve
- Then Maureen can wrap up with all of her practical suggestions for defendants.
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
Susan R. Hershman is the chair of the False Claims Act and qui tam practice at Greenberg Gross LLP (Los Angeles). She has over 40 years’ experience in complex commercial litigation, including 21 years specializing in the False Claims Act as an Assistant U.S. Attorney at the Los Angeles United States Attorney’s Office, Civil Fraud Section, at the time the largest dedicated federal affirmative civil enforcement office in the nation, outside of Washington, D.C. As the Deputy Chief of that Section for more than 12 years, and co-Deputy Chief for over five years, she supervised an average of more than 71 False Claims Act and other government affirmative cases per year. She also was lead counsel in many such successful multi-million-dollar cases, including a Medicare Part C and Medicaid settlement with SCAN Healthcare totaling $323.67 million.
Her own False Claims Act cases have involved both the federal and State False Claims Acts; the Federal Acquisition Regulation; government health care law (Medicare, Medicaid, Tricare, and other programs); government contract law; aerospace and defense contracting; defense contract cost accounting; defective products and false testing; classified investigations and litigation; U.S. Small Business Administration issues; international False Claims Act issues; the California Insurance Fraud Prevention Act; and whistleblower issues. She has decades of experience working with the major federal agencies affected by the Act, including the Centers for Medicare and Medicaid Services, the Department of Defense, NASA, and the National Reconnaissance Office, and in industries involving a wide variety of companies and products, including pharmaceutical manufacturers, hospitals, physician practices, durable medical equipment, satellites, rockets, and cutting-edge nanotechnology.
Ms. Hershman received her J.D. from the University of California at Berkeley Law School and her A.B. from Harvard College of Harvard University, Cambridge, Massachusetts.
Susan R. Hershman is the chair of the False Claims Act and qui tam practice at Greenberg Gross LLP (Los Angeles). She …
Steve Gombos is the Senior Litigation Partner at Gombos Leyton PC. He has more than 28 years of litigation experience, including trying cases and arguing appeals involving complex commercial disputes in federal courts across the country. Over the last 15 years, Steve has focused his practice on False Claims Act defense, particularly involving colleges and universities. He has spent much of the last three years—since the Supreme Court’s decision in Universal Health Services v. United States ex rel. Escobar, 136 S.Ct. 1989 (2016)—litigating implied certification claims and contesting the FCA’s materiality standard in federal trial and appellate courts across the country.
Mr. Gombos received his J.D. from the University of Richmond School of Law and his B.A. from Lafayette College.
Steve Gombos is the Senior Litigation Partner at Gombos Leyton PC. He has more than 28 years of litigation experience, …
Ms. McDonald advises clients on various government contracts and complex commercial matters. She assists with transactional government contracts due diligence, False Claims Act investigations and litigation, and other procurement and contracts issues.
Prior to joining Akin Gump Strauss Hauer & Feld LLP, Ms. McDonald worked for a government contractor as both a procurement specialist and a contracts administrator. She also worked as a summer intern for the U.S. Department of Health & Human Services, Office of General Counsel, General Law Division.
Ms. McDonald received her J.D. in 2015 from The Catholic University of America, Columbus School of Law, where she was managing editor of The Catholic University Law Review. She earned her B.A. in English from the University of North Carolina at Chapel Hill.
Ms. McDonald advises clients on various government contracts and complex commercial matters. She assists with transactional government contracts due diligence, …
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Method of Presentation:
General knowledge of government fraud litigation
NY Category of CLE Credit:
Areas of Professional Practice
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About Greenberg Gross LLP
Greenberg Gross LLP, an elite law firm that specializes in high-stakes business litigation, represents public and private companies, prominent law firms, nonprofit organizations, high-level executives, and others in their most significant cases. It is regularly ranked as a “Best Law Firm” by U.S. News Media Group and Best Lawyers®.
About Gombos Leyton
Gombos Leyton PC is a boutique law firm providing full-service, business-effective representation for businesses and senior management.
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Through its network of domestic and international offices, Akin Gump advises companies across myriad industries in both mature and emerging markets. Akin Gump professionals possess a sharp understanding of the intangible factors in economic and political infrastructures, combining it with first-hand government experience at the highest levels around the world.