First, this Note will discuss the FCA, contemplating its requirements and purpose. The Rule 9(b) pleading standard will be examined in general and as it applies to the FCA. Second, this Note will examine how the circuit courts have chosen to apply the Rule 9(b) pleading standard to FCA complaints, discussing the courts’ holdings within a spectrum of rigid to flexible applications of that rule to highlight the inconsistency surrounding this issue. Third, this Note will suggest that the pleading standard be relaxed in FCA cases to improve access to the judicial system for relators and avoid the informational asymmetry problem.
Fourth, this Note will propose a test for courts to use when evaluating FCA complaints and propose factors that courts should consider when determining if reliable indicia have been provided. Finally, this Note will suggest that the “representative samples” approach and the “status of the relator” approach should be rejected in favor of the flexible approach. Not only will evaluating FCA complaints under this test fulfill the purpose behind the enactment of Rule 9(b), but it will also improve access to the judicial system for relators and allow the FCA to fulfill its remedial purpose. Courts should apply Rule 9(b) flexibly to avoid the unfair burden that a rigid application places on relators. This Note promotes a flexible application of Rule 9(b) in FCA cases and works to clarify the factors courts should consider when applying a flexible application of Rule 9(b) in FCA cases.
Sara A. Smoter,
Relaxing Rule 9(b): Why False Claims Act Relators Should be Held to a Flexible Pleading Standard, 66 Case W. Res. L. Rev. 235 (2015)
Available at: http://scholarlycommons.law.case.edu/caselrev/vol66/iss1/8