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Adam Pollock and Randall Fox

Fraud-related claims usually must be pled with particularity. But in a little-noticed provision at the end of New York’s False Claims Act, §192(1-a), the New York legislature provided for a lower pleading hurdle when asserting violations of New York’s FCA in state court. In federal court, in contrast, FCA cases are evaluated under the heightened pleading standard embodied in Federal Rule of Civil Procedure 9(b). As a consequence, when qui tam relators (whistleblowers) file cases in federal court alleging violations of both the federal and state FCAs, their New York FCA causes of action are subject to the heightened federal pleading standard. Accordingly, relators should strongly consider filing separate federal and state qui tam actions (or seeking to remand improperly removed cases) in order to benefit from the New York FCA pleading standard at the dismissal stage.

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