Bass, Berry & Sims attorneys Richard Arnholt and Kaitlin Harvie authored an article for Thomson Reuters’ Westlaw Journals 2015 U.S. Supreme Court Report, discussing the implied-certification theory at issue in Triple Canopy, Inc. v. United States ex rel. Badr, a case involving allegedly false claims submitted by a defense contractor for security services in Iraq. In the article, Richard and Kaitlin explore the ambiguity of the implied-certification theory and how the pending decision on the Triple Canopy petition for certiorari may help clarify the theory’s viability and scope, particularly in light of the Supreme Court’s recent grant of certiorari in the Universal Health Services v. United States ex rel. Escobar case, which addresses the same issues in the healthcare context. In Triple Canopy, the Fourth Circuit Court of Appeals adopted the implied-certification theory, relying on “common sense” and ignoring the express terms of the underlying contract to conclude that false presentment claims had been adequately pleaded against the contractor, even though payment was not conditioned on the provision allegedly violated. To complicate matters, other courts have rejected the theory, such as the Seventh Circuit in United States v. Sanford-Brown Ltd.
The full article, “Implied Certification in the Crosshairs: 7th Circuit Ruling Increases Likelihood of Supreme Court Review of False Claims Act Case,” was published January 4, 2016, in Westlaw Journal Government Contracts and is available in the PDF below. Additionally, the article was published in more than 30 legal publications distributed by the publisher.