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Judges, signaling interest in False Claims Act, urged to clarify ‘knowing’ violation

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Petitions of the week

The Petitions of the week section highlights a selection of certificate petitions recently filed in the Supreme Court. A list of all the petitions we monitor is available here.

Monday, the court called on the government to intervene on a petition filed earlier this year, asking whether it matters that a person accused of “knowingly” defrauding the government under the False Claims Act believes or understands that their own conduct was unlawful. Known as an “appeal for the opinion of the Solicitor General” or CVSG, this request may indicate that the judges are considering the matter closely. This week, we’re highlighting cert requests that ask the court to consider, among other things, the same issue in similar circumstances.

The FCA allows an individual to sue on behalf of the United States if they have evidence that someone obtained money from the government under false pretences. In exchange for his contribution to the protection of public funds, this person is entitled to a share of the money recovered.

When Walmart rolled out $4 monthly supplies of many generic drugs in 2006, other drugstore chains rushed to follow suit. Safeway announced two competing offers: a price comparison with any competitor and a free membership program for $4 monthly supplies paid without insurance. While Walmart reported its $4 flat rate as “usual and customary,” or U&C, to the government for reimbursement, Safeway reported U&C prices at the rates it charged those who had not requested equalization. price or join the membership program.

Thomas Proctor sued Safeway under the FCA. He accused the pharmacy chain of overcharging the government for reimbursement for each monthly supply of generic drugs that its customers paid for with demanded discounts, either through price matching or the membership scheme. .

The United States Court of Appeals for the 7th Circuit sided with Safeway. The court found that company executives knew they were reporting higher U&C prices. However, the court accepted Safeway’s argument that it had not “knowingly” defrauded the government because the reporting of those prices was reasonable and there was no authoritative indication to the contrary. . In doing so, the court relied on its own earlier decision in favor of another pharmacy chain facing similar allegations which led to the motion mentioned above, United States ex rel. Schutte vs. SuperValu, Inc.

In United States ex rel. Proctor v Safeway, Inc., Proctor is asking judges to rule that Safeway’s belief or understanding that he crossed the line is sufficient to incur liability under the FCA. When he filed his petition earlier this month, Proctor noted that the government had endorsed this argument by Schutte in the 7th Circuit. He urged the court to grant both motions but, acknowledging that “the United States is the true interested party in every FCA case,” also suggested a request for the government to intervene. The CVSG of the court in Schutte came on Monday.

A list of featured petitions from this week is below:

United States ex rel. Proctor v Safeway, Inc.
22-111
Publish: If and when a defendant’s contemporary subjective understanding or beliefs about the legality of his conduct are relevant to whether he “knowingly” violated the Misrepresentation Act.

ML Genius Holdings LLC v Google LLC
22-121
Publish: If the Copyright law preemption clause allows a company to invoke the traditional contractual remedies of state law to enforce a promise not to copy and use its content.

University of Toledo vs. Wamer
22-123
Publish: Can schools be held liable under Title IX of the Education Amendment Act of 1972 for sexual harassment that ceased before being informed.

Kimberlin v. United States
22-124
Publish: Must an applicant show that he suffers from a “civil incapacity” – that is, a collateral consequence which causes substantial and present harm, is specific to the criminal context and arises solely from the wrongful conviction – before a court can grant a writ of error coram nobis, or whether a court can instead presume that every conviction has collateral consequences that provide sufficient standing to seek relief.