United States: Ninth Circuit Finds Continued Government Payments Show That Alleged False Statements Are Not Material

Just before the July 4 holiday, the Ninth Circuit easily affirmed summary judgment for technology and manufacturing company Honeywell in yet another False Claims Act case that turned in large part on application of the "demanding" materiality standard articulated by the Supreme Court in Universal Health Services, Inc. v. United States ex rel. Escobar.1 Here, in United States ex rel. Berg v. Honeywell Int'l, Inc., No. 17-35083, 2018 WL 3237518 (9th Cir. July 3, 2018), Honeywell had an Energy Savings Performance Contract to overhaul the energy production systems at Fort Richardson and Fort Wainwright in Alaska.  This included installing energy efficient lighting and converting certain buildings from central heating to commercial natural gas and electricity. The whistleblowers alleged that Honeywell made false statements regarding its energy savings calculations and fraudulently induced the Army to enter into the contract, thus rendering Honeywell's claims for payment false.

Continued Government Payment Points to Immateriality

The key ruling in this case relates to the materiality element of FCA liability. The Ninth Circuit acknowledged the requirement that a misrepresentation "must be material to the Government's payment decision in order to be actionable under the False Claims Act," citing Escobar.2 In Escobar, the Supreme Court found that "if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material." 3 In Honeywell, the Army paid Honeywell's claims from 2003 to 2008, despite being aware of relators' fraud allegations since 2002 and having conducted its own audit in 2003. 4 Given this history and relators' failure to present evidence on materiality to the contrary to create a triable issue of fact, the Ninth Circuit found that the relators' claim failed under the "demanding" materiality requirement of Escobar.5

The Honeywell ruling contrasts with the Ninth Circuit's recent ruling in United States ex rel. Campie v. Gilead Sciences, Inc. where relators allege that Gilead made false claims for reimbursement from Medicare, Medicaid, and other federal health care programs by falsely billing for drugs as FDA-approved when they did not meet FDA standards. 6 In that case, the defendant contended that because the government continued to pay after it knew of violations and because the FDA did not revoke its approval, those violations were not material to the payment decision.  But in what the defense bar views as a departure from Escobar, the Ninth Circuit found that "to read too much into FDA's continued approval - and its effect on the government's payment decision - would be a mistake." 7 The court noted that there might be many reasons for the agency not to have withdrawn its approval of payments, unrelated to the concern over paying out billions of dollars for nonconforming and adulterated drugs. Also, the Campie defendant ultimately stopped using the non-compliant drugs, so the agency's decision to keep paying did not have the same significance "as if the government continued to pay despite continued noncompliance." 8

Thus the Honeywell case represents a shift back towards the "rigorous" and "demanding" materiality standard set by the Supreme Court in Escobar and away from the Ninth Circuit's own recent precedent in Campie. Notably, the Honeywell decision is unpublished, hinting that the Ninth Circuit may be making a one-time distinction and remains deferential to its decision in GileadGilead currently has a pending petition for certiorari to the Supreme Court, so it also may be that the Ninth Circuit is waiting to see how the Court will rule in that case. 

Falsity Requires a Lie

As to falsity, the relators argued that Honeywell's statements regarding its purported energy savings were objectively false because the estimates were incorrectly calculated under the statutory and regulatory framework that governs Energy Savings Performance Contracts. Honeywell, however, had disclosed the assumptions and math underlying its energy savings estimates, which the court said rendered its estimates not false. This is because falsity under the FCA does not mean "incorrect as a matter of proper accounting methods" and instead requires "a lie." 9 Quoting Escobar, the court reiterated that the FCA is not a "vehicle for punishing garden-variety breaches of contract or regulatory violations," and the Army's failure to reject the company's proposals does not mean the company's calculations were false. 10

What This Means For You

Going forward, this albeit unpublished decision joins the chorus of cases in which continued payment by the Government constitutes a defense to the "materiality" element of FCA liability, a question that seemed laid to rest in Escobar, but could be revisited should the Court grant cert in Campie. The Honeywell case also demonstrates that contractor transparency in its calculations can provide a defense to FCA allegations. Even if errors are found in a contractor's calculations and assumptions, disclosing those calculations to the Government can potentially negate the falsity element of FCA liability. Following this ruling, we will monitor Gilead's petition to the Supreme Court, which, if accepted, could have significant implications on materiality issues moving forward.


1 136 S. Ct. 1989 (2016).

2 United States ex rel. Berg v. Honeywell Int'l, Inc., No. 17-35083, 2018 WL 3237518, at *2 (9th Cir. July 3, 2018).

3 Escobar, 136 S. Ct. at 1995.

4 United States ex rel. Berg v. Honeywell Int'l, Inc., No. 17-35083, 2018 WL 3237518, at *2 (9th Cir. July 3, 2018).

5 Escobar, 136 S. Ct. at 1995 (2016).

6 862 F.3d 890 (9th Cir. 2017),  petition for cert. filed (U.S. Jan. 3, 2018) (No. 17-936).

7 Id.

8 Id.

9 United States ex rel. Berg v. Honeywell Int'l, Inc., No. 17-35083, 2018 WL 3237518, at *1 (9th Cir. July 3, 2018).

10 Id. at *2.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions