On May 10, 2022, the Fourth Circuit granted the qui tam relator’s motion for rehearing en banc and vacated the three-judge panel’s January 25, 2022 decision. The now-vacated decision adopted the test for willfulness announced by the Supreme Court in Safeco. As WLF’s brief showed, the Safeco test applies in FCA cases when deciding if a defendant acted with reckless disregard for the truth or falsity of submitted claims. Violations of the FCA carry both punitive civil penalties and criminal liability. This means that even civil defendants are entitled to heightened due-process protections. WLF explained that applying Safeco in FCA cases provides the necessary due-process protections while advancing Congress’s goal of ensuring companies do not bury their heads in the sand. 

Documents:

Fourth Circuit’s opinion

WLF amicus brief