The United States Court of Appeals for the Eighth Circuit recently held that whistleblowers may satisfy the False Claims Act’s (FCA) heightened pleading standards without providing representative examples of false claims, such as invoices, as long as they provide other indicia of their reliability, such as personal knowledge of allegedly fraudulent practices.

Planned Parenthood of the Heartland, Inc. (Planned Parenthood) is a nonprofit organization in Iowa that provides services to patients, including those eligible for Medicaid, through clinics in various locations. From 1991 to 2008, Susan Thayer served as a manager for two such clinics. Based on her personal knowledge of Planned Parenthood’s billing practices, Ms. Thayer brought a qui tam action alleging that Planned Parenthood had violated the FCA and similar state laws by submitting false or fraudulent claims for Medicaid reimbursement. Because Ms. Thayer did not include representative examples of the purportedly false invoices, the trial court dismissed her complaint for failure to plead her claims with particularity as required by Federal Rule of Civil Procedure 9(b). The Eighth Circuit affirmed in part and reversed in part, finding that neither Rule 9(b) nor applicable caselaw requires representative examples to be submitted with every FCA complaint that alleges a systematic practice or scheme of submitting false claims.

The Eighth Circuit’s holding follows other circuits that have concluded a whistleblower can satisfy Rule 9(b)’s heightened pleading standard by “alleging particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.”  

Thayer v. Planned Parenthood of the Heartland, Inc., Case No. 13-1654 (8th Cir. Aug. 29, 2014).