In Universal Health Services v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), the Supreme Court changed the landscape for False Claims Act litigation. The Court endorsed implied certification liability in certain circumstances, but set a high bar for demonstrating the materiality of a violation of law, regulation, or contract to the government’s payment decision.

Nearly two years after the Escobar decision, lower courts continue to grapple with the case’s key holdings. It is essential that government contractors, practitioners, and other stakeholders keep abreast of how the courts are interpreting Escobar. To that end, Inside Government Contracts hosts Covington’s Escobar tracker, an index of district and circuit court cases applying the Court’s implied certification and materiality rulings. Our tracker provides a brief summary of each case and its Escobar-related holding.

This latest version of our tracker, available here, has been updated to include notable FCA decisions interpreting Escobar from the past few months. These recent cases include a series of important rulings underscoring the demanding nature of the FCA’s materiality standard, including the Fifth Circuit’s detailed discussion of post-Escobar materiality and a careful analysis of materiality under federal country-of-origin laws. The tracker also includes cases addressing the contours of implied certification under Escobar, including decisions out of the Eleventh and D.C. Circuits reaffirming limitations on the implied certification theory of liability.

We will continue to update the list periodically with new cases. We hope you find the tracker useful.

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Photo of Sarah Tremont Sarah Tremont

Sarah Tremont is an associate in the firm’s Washington, DC office, where she is a member of the Intellectual Property Rights and Litigation Groups. Her practice involves trademark advisory work as well as consumer class action defense.

Photo of Michael Wagner Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.