DOJ Advocates for Dismissal of False Claims Act Case, Urges SCOTUS Not to Clarify Escobar Materiality Standard

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In an unusual amicus brief, DOJ urged the Supreme Court of the United States not to grant certiorari in Gilead Sciences, Inc. v. United States ex rel. Campie because “continued prosecution of the suit is not in the public interest.”  DOJ argued that, should the case be remanded, it would ultimately seek dismissal itself under 31 U.S.C. § 3730(c)(2)(A).

Presciently, Jeff Belkin and Mike Mortorano wrote for Law360 here about seeking DOJ dismissal of False Claims Act cases under that little-used provision, noting that DOJ may be sensitive to “closing off a legal theory of recovery in future cases.”  Now, it seems that DOJ is acting to avoid that very result—hoping to preserve a more government-friendly interpretation of the Escobar materiality standard—so that the government can still recover in False Claims Act cases where it is alleged to have made continued payments with knowledge of misstatements.

Jeff Belkin is a partner and Mike Mortorano is a senior associate in Alston & Bird’s construction and government contracts group.