Bradley attorney Elisha Kobre talked with Law360 about an upcoming Supreme Court ruling on the viability of False Claims Act (FCA) cases involving unclear compliance obligations. The ambiguous nature of these obligations and reaction of defense attorneys signals the likelihood of a favorable ruling.
Kobre told Law360 that FCA defense lawyers — himself included — have "absolutely" been making the ambiguity argument more frequently at the investigative stage and early in litigation. The Supreme Court recently agreed to analyze the Seventh Circuit’s ruling that it “does not matter” whether an individual intentionally committed fraud, as long as billing reflected “objectively reasonable” views of murky compliance duties.
"We regularly point the government to ambiguity," Kobre said, adding that "the ambiguity argument is akin to playing offense … rather than defensively attempting to analyze the underlying conduct under the government's chosen interpretation of the regulation."
FCA litigants have occasionally disputed the meaning of laws and regulations, and some former rulings may suggest that defense counsel could focus on ambiguity without feeling pressured to prove good intentions.
"An argument based on ambiguity is more likely to succeed on a motion to dismiss because it does not depend on facts, which are often in dispute," Kobre explained. "So defendants have a better shot at getting claims knocked out [at] the motion to dismiss stage on an ambiguity argument."
The full article, “High Court’s FCA Showdown is Already Shaping DOJ Probes,” was published in Law360 on February 22, 2023. (login required)