Jim Barger, founding partner of Frohsin Barger & Walthall, was extensively quoted in a Bloomberg Law article published today ,January 31, 2017, commenting that Supreme Court contender and Eleventh Circuit Judge William H. Pryor “would likely take a no-nonsense approach to applications of the False Claims Act.”  The article, written by Bloomberg reporter Daniel Seiden, examines Judge Pryor’s record in False Claims Act cases, particularly his decision in United States ex rel. McNutt v. Haleyville Med. Supplies Inc., 11th Cir., No. 04-14458, (Sept. 9, 2005).  In that case, Judge Pryor allowed the government to proceed with claims that Medicare payments were illegally claimed and received by the defendant, a medical services company, because the defendant paid illegal kickbacks to pharmacists.

Judge Pryor’s ruling in Haleyville Medical Supply addressed and imposed False Claims Act liability under a theory commonly referred to as the “implied certification” theory.  This theory of liability was unanimously affirmed by the Supreme Court in Universal Health Servs. v. United States ex rel. Escobar, U.S., No. 15-7, (June 16, 2016) and, among other things, imposes liability if a government contractor does not disclose violations of statutory, regulatory or contractual obligations that are material to receiving payment from the government.  Therefore, Judge Pryor’s Haleyville Medical Supply opinion was certainly ahead of its time by ruling ‘‘when a violator of government regulations is ineligible to participate in a government program and that violator persists in presenting claims for payment that the violator knows the government does not owe, that violator is liable’’ under the False Claims Act.

Jim Barger is further quoted regarding Judge Pryor’s potential position in light of the Supreme Court’s Escobar decision and predicted  that Judge Pryor would ‘‘likely take the same no-nonsense approach to any interpretation of Escobar, which is in many ways just a more verbose version of Judge Pryor’s reasoning in the Haleyville Medical Supply opinion — Escobar really doesn’t create a higher materiality standard as some would argue, but rather cuts straight to the plain language and plain sense of the FCA.’’