US ex rel. Rose v. Stephens Institute, No. 17-15111 (9th Cir. 2018)
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The Ninth Circuit affirmed the district court's order denying the school's motion for summary judgment in a qui tam action brought by relators under the False Claims Act (FCA). Relators alleged that the school violated an incentive compensation ban included in its program participation agreement with the Department of Education, through which it qualified for federal funding.
The panel held that a reasonable trier of fact could conclude that the school's actions met the falsity requirements in Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016). The panel held that Escobar did not overrule United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166 (9th Cir. 2006), which held that, with regard to materiality, the question is whether the false certification was relevant to the government's decision to confer a benefit. The panel applied Esobar's standard of materiality and held that a reasonable trier of fact could find materiality because the DOE's payment was conditioned on compliance with the incentive compensation ban, past enforcement activities, and the substantial size of the incentive payments. Finally, the safe harbor provision was inapplicable in this case.
Court Description: False Claims Act. The panel affirmed the district court’s order denying defendant’s motion for summary judgment in a qui tam action brought under the False Claims Act. Relators, former admissions representatives for Academy of Art University, an art school in San Francisco, alleged that the school violated an incentive compensation ban included in its program participation agreement with the Department of Education, through which it qualified for federal funding in the form of federal financial aid to its students under Title IV of the Higher Education Act. A claim under the False Claims Act requires: (1) a false statement or fraudulent course of conduct, (2) made with scienter, (3) that was material, causing (4) the government to pay out money or forfeit moneys due. In Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993 (9th Cir. 2010), this court held that the falsity requirement can be satisfied either by express false certification or by implied false certification, which requires a showing that (1) the defendant explicitly undertook to comply with a law, rule, or regulation that was implicated in submitting a claim for payment and that (2) claims were submitted (3) even though the defendant was not in compliance with the law, rule, or regulation. In Universal Health Servs., Inc. v. United UNITED STATES EX REL. ROSE V. STEPHENS INST. 3 States ex rel. Escobar, 136 S. Ct. 1989 (2016), the Supreme Court held that a showing of implied false certification requires the satisfaction of two conditions: “first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half- truths.” The panel held that under two post-Escobar Ninth Circuit cases, relators must satisfy Escobar’s two conditions to prove falsity. The panel concluded that a reasonable trier of fact could conclude that Academy of Art’s actions met the Escobar requirements for falsity. In Escobar, the Supreme Court also clarified that whether a provision is labeled a condition of payment is relevant to but not dispositive of the materiality requirement; therefore, even when a requirement is expressly designated a condition of payment, not every violation of that requirement gives rise to liability. Instead, materiality looks to the effect on the likely or actual recipient of the alleged misrepresentation, meaning the government. The panel concluded that Escobar did not overrule United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166 (9th Cir. 2006), which held that, with regard to materiality, the question is whether the false certification was relevant to the government’s decision to confer a benefit. Applying the Escobar standard of materiality, the panel concluded that a reasonable trier of fact could find materiality because the Department of Education’s payment was conditioned on compliance with the incentive compensation ban, because of the Department’s past enforcement activities, and because of the substantial size of the forbidden incentive payments. 4 UNITED STATES EX REL. ROSE V. STEPHENS INST. The panel further held that, on summary judgment, Academy of Art did not show that any violations of the incentive compensation ban fell within the Department of Education’s now-repealed safe harbor provision, which required, among other things, that any adjustment in compensation was not based solely on the number of students recruited, admitted, enrolled, or awarded financial aid. Dissenting in part, Judge N.R. Smith agreed with the majority’s opinion through its discussion of falsity. Judge Smith disagreed with the majority’s analysis of materiality because the majority failed to recognize that Hendow’s materiality holding is no longer good law after Escobar; failed to fully articulate the Supreme Court’s materiality standard as outlined in Escobar; and applied its erroneous legal standard to the facts at hand, reaching an erroneous conclusion. Judge Smith wrote that he would reverse the district court’s materiality finding, vacate the judgment, and remand for additional discovery and further briefing.
The court issued a subsequent related opinion or order on November 26, 2018.
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