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University of Miami Law Review

Abstract

False Claims Act litigation is more hotly contested than ever before. One such controversial issue plaguing federal courts is the proper application of Federal Rule of Civil Procedure 9(b) to actions arising under the False Claims Act. The explosion of litigation under the FCA caused a circuit split to emerge on the correct standard to use when applying Rule 9(b)’s heightened pleading requirement for more particularity. Specifically, courts are split on the level of specificity required to prove that a false claim was submitted to the government. Some apply a “strict” interpretation and require pleadings to include representative samples of the actual false claims that were submitted to the government, while others utilize a more “nuanced” standard and simply demand that complaints include details of a fraudulent scheme paired with reliable indicia to support an inference that claims were submitted. The effect of this uncertainty among the federal circuits means the difference between the dismissal of an action before reaching discovery or the continuation to a potentially multi-million-dollar judgment. As this circuit split implicates vast financial consequences, the Rule 9(b) question in FCA actions is of the utmost importance.

This article focuses on how the Eleventh Circuit interprets the requirements of Rule 9(b), in order to contribute to the widespread commentary on how the circuit split may be resolved. Ultimately, if the Supreme Court does decide to grant cert on this issue, this Comment urges that the Eleventh Circuit should serve as a model for the properly balanced application of Rule 9(b) for actions arising under the False Claims Act.

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