Back in October, this blog considered the Sixth Circuit’s strict application of the False Claim Act's requirement that qui tam complaints be filed under seal. In doing so, we questioned whether the Court’s decision in US ex rel Summers v. LHC Group, Inc., No. 09-5883 (6th Cir. Oct. 4, 2010), upholding the dismissal of an FCA complaint due to the plaintiff’s failure to file under seal, would “usher in a new era of FCA restraint,” or ultimately lead to “Supreme Court intervene[tion]?” It looks like we now have our answer, and it's probably the latter.

Earlier this week, the Supreme Court invited the Solicitor General to weigh in on the LHC Group decision and, in particular, whether it directly conflicts with the Ninth Circuit’s decision in United States ex rel. Lujan v. Hughes Aircraft Co., 67 F.3d 242 (9th Cir. 1995). In Lujan, the Ninth Circuit utilized a balancing test to determine whether a FCA plaintiff’s failure to strictly adhere to FCA procedure barred her claims, a decidedly more forgiving approach than the Sixth Circuit’s in LHC Group.

The plaintiff in LHC Group has petitioned the Supreme Court to grant a Writ of Certiorari on the grounds that the Ninth Circuit’s balancing test approach in Lujan is irreconcilable with the per se dismissal rule utilized by the Sixth Circuit in LHC Group. Her adversary argues that no split exists because the improper disclosure in Lujan occurred after filing, while the disclosure in LHC Group occurred at the outset. Is the timing of the disclosure enough to distinguish the facts of the cases and avoid a Circuit split? It’s too early to tell but we may be closer to the answer to this question when the Solicitor General weighs in.