Rule 9(b) Circuit Split

Federal rule of civil procedure 9(b) mandates that all fraud cases must “state with particularity the circumstances constituting fraud or mistake” in the complaint itself (the federal rules require very little specific facts for all non-fraud cases). The Circuit Court of Appeals are split as to whether a relator must include the factual details of specific false claims in a complaint to satisfy this rule.

3 Circuits do not Require Specifics

The First, Fifth and Seventh Circuits have all held that the requirements of rule 9(b) can be met without identifying specific false claims in the complaint. These courts have emphasized that while specific facts must be alleged, a relator cannot be expected to know the details of each false claim before the discovery process has taken place.

4 Circuits Require Specific Facts About False Claims

The Eleventh, Sixth, Eighth, and Tenth Circuits have held the opposite, requiring an FCA complaint to state the specific false claims the defendant allegedly submitted in order to satisfy rule 9(b).

The Supreme Court has yet to agree to hear a case that will resolve the circuit split.

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