Divide Deepens Over Whether Escobar Requires Specific Misrepresentations To State An Implied Certification Claim

As we reported earlier, district courts have split on whether Escobar’s so-called “two-part test” is the sole means of establishing implied certification liability under the FCA.  In Escobar, the Supreme Court held that implied certification liability may exist where: (1) the claim does not merely request payment, but also makes specific representations about the goods or services provided; and (2) the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading.  While some courts have determined that Escobar’s two-part test is the exclusive means of establishing implied certification liability, DOJ and various qui tam relators have argued that implied certification claims may proceed—at least in some cases—without establishing “specific misrepresentations” about the goods or services provided.