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Since the Supreme Court’s June 2016 decision in Universal Health Services, Inc., v. United States ex rel Escobar, 136 S. Ct. 1989 (2016), there has been much discussion about whether the Court’s reformulation of the standards applicable to implied false certification benefits relators or defendants. However, the use of implied certification by relators and the DOJ to impose on defendants their interpretation of a regulation or term of a contract or grant has received much less attention.

Increasingly, relators and the DOJ have been using the FCA to pursue civil fraud claims not based on factual misrepresentations, but rather on the relator’s or the Government’s view of what the “correct” interpretation of a regulation or a contract or grant term should be. It is not unusual for that interpretation to be different than the interpretation advanced in the promulgation of the regulation or different than the approach practiced by the promulgating agency. As the DOJ speaks officially for the sovereign United States, the DOJ (and relators suing on behalf of the United States) reserves the right to make interpretative disagreements into claims of fraud.

This teleforum will explore implied certification where the dispute involves issues of regulatory or contractual interpretation and whether such a matter is really an administrative law dispute or fraud.   


  • Marcia G. Madsen, Partner, Mayer Brown LLP 
  • Brian D. Miller, Shareholder, Rogers Joseph O’Donnell