Elisha Kobre Quoted in Law360 on FCA Defendants Acting with Scienter


Media Mention

 Bradley attorney Elisha Kobre talked with Law360 about the False Claims Act (FCA) scienter requirement and what qualifies as a “substantial and unjustifiable risk.”

Scienter is action taken by defendants that implies knowledge of their wrongdoing. Justice Clarence Thomas challenged the Seventh Circuit’s finding that the FCA defendants had an “objectively reasonable view” of an ambiguous policy, with Thomas citing scienter on behalf of the defendants as a “reckless disregard” of the truth.

Proving or disproving scienter regarding potentially ambiguous policy from a company that faces potential FCA liability leaves room for speculation. Kobre said although companies could try to proactively inquire with the relevant agency, agencies typically are not obliged to actually answer any of those questions, and that inquiry in itself could later be used against the company.

If a company inquired about the ambiguous regulations around FCA liability, then that situation may disprove the claim acting with scienter. Kobre said, “There’s no real process for many agencies to get clarity on potential ambiguous regulations, but by reaching out, it shows them that you are aware that there is risk.”

The full article, “High Courts Opens up Uncertainty on FCA Recklessness,” was published by Law360 on June 1, 2023.