United States: The Eighth Circuit’s Decision In Planned Parenthood And The Extent Of The Circuit Split Regarding The Rule 9(B) Heightened Pleading Requirement In FCA Cases

Last Updated: September 15 2014
Article by Luke Levasseur

Keywords: Rule 9(b)--Particularity Requirement.

The FCA relators' and defense bars have been battling for some time about the extent of a relator's obligation under Rule 9(b) to plead the details of her/his claim with particularity. The Eighth Circuit's recent decision in US ex rel. Thayer v. Planned Parenthood appears to change the balance in what has been described as a circuit split regarding whether allegations concerning "representative examples" of specific false claims are necessary to satisfy Rule 9(b)'s heightened pleading standard. On closer inspection, however, the court's opinion raises questions regarding the extent of the circuit split.

Under Planned Parenthood, a relator may be able to evade the representative-example-requiring interpretation of Rule 9(b) if she/he can plead the "particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that the claims were actually submitted." For such "reliable indicia" to exist, the relator would presumably have held a position that would have resulted in first-hand knowledge of the defendant's billing processes and procedures such that she/he could make credible allegations related to the submission of specific claims to the Government. Many FCA relators will not be in a position to satisfy both of these requirements, and Rule 9(b) should continue to preclude such claims.

Federal Rule of Civil Procedure 9(b) requires that when "alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." FCA relators often make allegations describing purported improprieties regarding products or services being sold by a Government contractor—but they have little or nothing to say about the specifics regarding the submission of a request for payment to a Government official (or seeking Government funds). The submission of claims, of course, is the central issue in a false claims case. With respect to FCA allegations that are light on details of the purported claims for payment, several circuit courts have issued opinions making clear that FCA claims should be dismissed under Rule 9(b) if they fail to identify specific requests for payment—or, as characterized by an earlier Eighth Circuit opinion, "representative examples of false claims."

Back in June, Cameron Hamrick wrote a post about the Third Circuit's decision in US ex rel. Foglia v. Renal Ventures, in which that court came down on the side it characterized as the "more nuanced reading of the heightened pleading requirement"—and rejected the notion that "representative samples" of false claims should be required. The Renal Ventures opinion states that the Fourth, Sixth, Eighth, and Eleventh Circuits imposed the "representative samples" requirement—while the First, Fifth, and Ninth Circuits (which the Third Circuit was joining) held that it is "sufficient for a plaintiff to allege 'particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted."

Before Planned Parenthood, the leading Eighth Circuit case applying Rule 9(b) particularity requirement in the FCA context was US ex rel. Joshi v. St. Luke's Hospital  (2006). The relator in that case, Dr. Joshi, had practiced medicine at the defendant hospital, and he alleged a 16-year practice of inflating Medicare reimbursement requests. But Dr. Joshi did not provide details of any specific claims and, instead, alleged that all of the hospital's claims had been inflated. In Joshi, the Eighth Circuit held that although Rule 9(b) does not "require [the relator] to allege specific details of every alleged fraudulent claim," the "particularity requirement" mandates allegations concerning "some representative examples of their alleged fraudulent conduct, specifying the time, place, and content of their acts and the identity of the actors." Because the relator's complaint was "void of a single, specific instance of fraud, much less any representative examples," it was properly dismissed. Joshi was repeatedly cited for the proposition that the Eighth Circuit required "representative examples" of false claims to satisfy Rule 9(b)

Like Dr. Joshi, the relator in Planned Parenthood "conceded that she did not provide any representative examples" of specific false claims purportedly made by the defendant. However, unlike Dr. Joshi, who was a service provider and didn't allege first-hand knowledge of the hospital's claim submission process, the Planned Parenthood relator had worked as the "manager for two of Planned Parenthood's clinics." In that capacity she oversaw the "billing and claims systems" and was thus able "to plead personal, first-hand knowledge of Planned Parenthood's submission of false claims" that the Eighth Circuit held was sufficient under Rule 9(b).

The Eighth Circuit panel in Planned Parenthood couldn't (and didn't purport to) overrule Joshi; it distinguished the case factually and announced the applicable legal rule. The crucial difference is that the Planned Parenthood relator "was able to plead personal, first-hand knowledge" of claim submission—and could thus "alleg[e] particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted." The court held that such allegations were sufficiently detailed to survive a motion to dismiss under Rule 9(b).

The court supported its decision, which appears to retreat from the "representative examples are required" rule, with a long string-cite to other circuit court decisions (at pp.5-7)—including the Fourth, Sixth, and Eleventh Circuits, which had issued opinions requiring "representative examples"—that applied the same "particular details paired with reliable indicia" standard being applied in Planned Parenthood. The Eight Circuit's decision in Planned Parenthood can either be seen as retreating on the court's earlier imposition of a higher standard—or as consistent with the assertion by the Solicitor General's office in its amicus brief in the Takeda case from the last Supreme Court term (in which the SG discouraged granting a writ of certiorari) that appeals courts such as the Eighth Circuit "have not consistently adhered to th[e] rigid understanding of Rule 9(b)" as requiring representative samples of claims.

Government contractors will be unhappy with a decision such as Planned Parenthood that recognizes a reduced pleading obligation for relators under Rule 9(b)—and thus potentially opens the door for more discovery based on flimsier allegations, e.g., relators who cannot specify even one false claim purportedly submitted to the Government. That said, to the extent courts are not consistently applying the "representative examples" requirement announced in earlier cases, the opinion helpfully explains how legal rules are actually being applied. In sum, the Planned Parenthood decision may open the courthouse door to a few additional relators, but contractors should continue to prevail when the relators' past/current employment position (or other background) does not give her/him any basis to understand facts (and make allegations with an indicia of reliability) regarding the defendant's billing practices or procedures concerning submissions of claims for payment to the Government.

Originally published September 11th, 2014

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2014. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions