December 13, 2017

13 December 2017

Recent Oral Argument Highlights the Ninth Circuit’s Continuing Struggle with Escobar

Last week’s oral argument in U.S. ex rel. Rose et al. v. Stephens Institute highlighted the Ninth Circuit’s continuing struggle with the Supreme Court’s decision in Escobar.

Stephens Institute involves allegations that the Academy of Art University (AAU) paid bonuses to recruiters in violation of an incentive compensation ban in Title IV of the Higher Education Act.  According to the relator, AAU violated the False Claims Act because it implicitly and falsely certified compliance with the ban when it requested federal funds for its students under Title IV.

The Ninth Circuit took up the case on interlocutory appeal after the district court denied summary judgment to the defendants.  Oral argument focused on two fundamental questions of law:

  1. Did Escobar establish a mandatory two-part test for claims brought under an implied false certification theory of FCA liability?
  2. Does a government’s practice of paying claims despite its knowledge of noncompliance render a defendant’s noncompliance immaterial as a matter of law?


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