False Claims Act - Rule 9(b) Circuit Split

Rule 9(b) Circuit Split

Under Rule 9(b) of the Federal Rules of Civil Procedure, allegations of fraud or mistake must be pleaded with particularity. The application of the Rule 9(b) pleading standard to claims made under the False Claims Act, however, has generated much litigation, and there remains a split among the federal appeals courts surrounding the specificity of the factual matter which needs to be alleged in order to plead a sufficient False Claims Act complaint. While the First Circuit, the Fifth Circuit, and the Seventh Circuit have ruled that whistleblowers under the False Claims Act are not required to allege specific false claims to satisfy Rule 9(b), the Eleventh Circuit, the Sixth Circuit, the Eighth Circuit, and the Tenth Circuit have all found that plaintiffs must allege specific false claims.

In 2010, the First Circuit decision in U.S. ex rel. Duxbury v. Ortho Biotech Prods., L.P.(2009) and the Eleventh Circuit ruling in U.S. ex rel. Hopper v. Solvay Pharms., Inc.(2009) were both appealed to the U.S. Supreme Court. The Court denied certiorari for both cases, however, declining to resolve the divergent appeals court decisions.