As predicted, the Supreme Court today denied certiorari in Gilead Sciences, Inc. v. U.S. ex rel. Campie—an outcome that was virtually guaranteed last month when the government's CVSG brief promised to voluntarily dismiss the case over relators' objections on remand. Given the Circuit split it created—particularly on the issue of the government's continued payment of claims with knowledge of alleged material non-compliance with legal, regulatory, or contractual requirements—many FCA watchers had hoped that Gilead would be the vehicle for the Supreme Court to clarify Escobar's materiality standard. Further guidance on Escobar will now have to wait, perhaps until 2020.
Although Gilead will remain on the books, it hopefully will remain a footnote, and we recommend that any defendant facing citation to Gilead in legal briefing makes the court aware of the somewhat surprising way the government decided to dodge the bullet at the Supreme Court. We at Qui Notes will closely monitor the case on remand and report back when the government follows through on its promise to move for dismissal.
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