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U.S. Court of Appeals for the Second Circuit.U.S. Court of Appeals for the Second Circuit (Credit: ALM)

The False Claims Act, 31 U.S.C. §3729 et seq. (FCA), and its state law analogues, premise liability upon proof that the defendant used false statements in connection with a claim for payment of money by the government. In cases where the government declines to intervene and a qui tam relator proceeds with the lawsuit, Federal Rule of Civil Procedure 9(b)’s requirement that a plaintiff must “state with particularity the circumstances constituting fraud” has tripped up many relators whose complaints failed to allege the details of a false claim for payment that was submitted to the government. Many relators have seen their complaints dismissed under Rule 9(b) as a result.

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