Kaiser Comments on Escobar Case for Law360
June 20, 2018 | |Jeff Kaiser provided his perspective for the article, “Attys Reflect On Escobar’s Impact 2 Years Later.”
According to Jeff, “While there is general agreement that Escobar intended a holistic approach in deciding materiality, interesting issues have arisen regarding what types of evidence are relevant in making this determination. For instance, is the government’s decision to decline an FCA case evidence that an alleged violation is not material to the government’s payment decision? Some courts seem to think so (see, e.g., Petratos v. Genentech Inc., Third Circuit). Others hold that the government’s intervention decision is not relevant to materiality and that any such consideration undermines the purpose of the FCA (see, e.g., Prather v. Brookdale Senior Living Communities Inc., Sixth Circuit). The Sixth Circuit’s position is consistent with pre-Escobar cases holding that declination of an FCA case should not be interpreted as evidence of government disinterest or lack of merit.”
