Eleventh Circuit Condemns “Shotgun Pleadings” in Florida FCA Suit
The Eleventh Circuit once again put effect to Rule 9(b), insisting on clarity and specificity in False Claims Act pleadings for them to survive. In Vargas v. Lincare, Inc., 24-11080, 2025 WL 1122196 (11th Cir. Apr. 16, 2025), the Eleventh Circuit reiterated the importance of pleading facts “showing that a false claim was actually submitted to the government” instead of merely “sketch[ing] out a theory.” In addition, the panel opinion’s author—the long-serving Judge Tjoflat—offered a concurrence condemning “shotgun pleadings” that “lump[] multiple claims together in one count,” imploring district courts to sua sponte strike such complaints “at the outset.”
The relators in Vargas advanced four distinct theories of FCA liability, each premised on a different alleged scheme by Optigen, a Lincare, Inc. subsidiary:
(1) Billing continuous positive airway pressure (“CPAP”) accessories as more expensive ventilation accessories;
(2) Waiving patient co-pays regardless of financial hardship in violation of federal law;
(3) Automatically shipping unrequested CPAP supplies to patients who did not need supplies; and
(4) Paying field technicians in exchange for referrals, in violation of the Anti-Kickback Statute.
The Eleventh Circuit panel upheld the district court’s Rule 9(b) dismissals of claims premised on three out of the four alleged schemes, remanding only scheme (1) for additional proceedings.
The panel held that the relators failed to identify specific claims submitted in connection with alleged schemes (2)-(4). In its analysis of theory (2), the alleged co-pay scheme, the court rejected relators’ argument that “reliable indicia” of a scheme “excuses [relators] from pleading claims that were actually submitted to the government” because “the true essence of the fraud of a False Claims Act action involves an actual claim for payment and not just a preparatory scheme.” Vargas, 2025 WL 1122196, at *7 (citing U.S. ex rel. Clausen v. Lab’y Corp. of Am., 290 F.3d 1301, 1311 (11th Cir. 2002)). The court rejected claims based on theories (3) and (4) for the similar reason that relators fail to tie them to any “specific false claims submitted to the government” or “actual referrals,” respectively.
By contrast, the court concluded relators supported theory (1) with “specific claims, with dates, amounts, and billing codes” allegedly “audited [from] patient files . . . giv[ing] them the type of inside information that are sufficient at the pleading stage,” satisfying the heightened pleading standard and warranting further proceedings.
In his concurrence, Judge Tjoflat pointedly criticized the form of relators’ pleading. By placing “four distinct fraud claims” into a single FCA count, relators crammed “separate allegations, involving different conduct, different facts, and different legal theories” into “one catch-all count.” Such a pleading “flout[s] the basic demands of Rules 8 and 10,” and is “something [the Eleventh Circuit] ha[s] condemned time and again,” and for good reasons. First, shotgun pleadings burden courts with untangling the claims merely to determine the issue at hand. Second, defendants are burdened with the difficult task of guessing which claims they will need to defend against. Third, the appellate process is burdened when the Circuit Court must review complaints the “plaintiffs never bothered to clarify.”
Judge Tjoflat offered FCA defendants a solution to the problem of shotgun complaints: moving under Rule 12(e) for a clarified complaint. And district courts, he urged, should “sua sponte strike [shotgun complaints]—early and firmly.” In doing so, Judge Tjoflat concluded, everyone will be spared “wasted time, money, and motion practice.”
The Eleventh Circuit’s opinion can be found here.
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