Brian Irving Discusses Supreme Court Review of False Claims Act Scienter Standard

January 18, 2023

Bass, Berry & Sims attorney Brian Irving was quoted in a Law360 article examining the potential impact of the U.S. Supreme Court’s decision to hear a pair of False Claims Act cases about the proper standard for establishing scienter under the False Claims Act. The Supreme Court will rule later this year on cases accusing two pharmacies of overcharging Medicare and Medicaid for generic drugs and the appropriate standard of knowledge of wrongdoing.

According to Brian, the Safeco standard applied by the courts of appeals has been a “useful tool” to secure dismissals and summary judgments, viewed by defendants as a “necessary defense to cabin FCA liability to where it’s intended to be under the statute.

Under the relators’ view, the issue of objective reasonableness when interpreting ambiguous policies would instead be more likely to be resolved only by a jury, and “the longer a case goes, the higher the costs to both parties,” Brian added.

The full article, “Justices Ignite FCA Debate: Fairness Vs. ‘Invitation To Fraud’,” was published by Law360 on January 17 and is available online. See our prior coverage of the Safeco standard on our Inside the False Claims Act blog here.