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Gilead Sciences, Inc. v. United States, ex rel. Jeffrey Campie, et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 15-16380 · judgment July 7, 2017

Certiorari denied · January 7, 2019
Pre-decision estimate: 15% cert probability (95% interval 11%–20%)

Before the decision, about 3.6× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Ninth Circuit decision below, and a circuit split argued in the petition.

Question presented

When a plaintiff invokes the False Claims Act (FCA), 31 U.S.C. § 3729 et seq., to assert that a contractor has defrauded the Government in connection with a claim for payment, the plaintiff must plausibly allege that any misrepresentation was “material to the Government’s payment decision.” Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2002 (2016). This Court has explained 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.” Id. at 2003. Further, a plaintiff’s failure to establish materiality is ripe for resolution “on a motion to dismiss or at summary judgment.” Id. at 2004 n.6. In this case, the Ninth Circuit allowed an FCA suit to go forward without any allegations that could overcome the powerful inference of immateriality created by the Government’s knowing decision to pay for the products at issue. That is in direct contrast to published decisions of six circuits over the past three years that have rejected lawsuits on the pleadings or at summary judgment in such circumstances. The question presented is: Whether an FCA allegation fails when the Government continued to approve and pay for products after learning of alleged regulatory infractions and the pleadings offer no basis for overcoming the strong inference of immateriality that arises from the Government’s response.

Counsel of record

For petitioner
E. Joshua Rosenkranz
Orrick, Herrington & Sutcliffe LLP

For respondent
Tejinder Singh
Sparacino PLLC

Case

Conference history
Distributed for 2 conferences

Amicus briefs
7 cert-stage

Proceedings

  1. Jan 07 2019
    Petition DENIED.
  2. Dec 19 2018
    DISTRIBUTED for Conference of 1/4/2019.
  3. Dec 19 2018
    Supplemental brief of respondents Jeffrey Campie, et al. filed. (Distributed)
  4. Nov 30 2018
    Brief amicus curiae of United States of America filed.
  5. Apr 16 2018
    The Solicitor General is invited to file a brief in this case expressing the views of the United States.
  6. Mar 21 2018
    DISTRIBUTED for Conference of 4/13/2018.
  7. Mar 20 2018
    Reply of petitioner Gilead Sciences, Inc. filed. (Distributed)
  8. Mar 05 2018
    Brief of respondents Jeffrey Campie, et al. in opposition filed.
  9. Feb 02 2018
    Brief amicus curiae of Coalition for Government Procurement filed.
  10. Feb 02 2018
    Brief amici curiae of Pharmaceutical Research and Manufacturers of America; Biotechnology Innovation Organization filed.
  11. Feb 02 2018
    Brief amicus curiae of Washington Legal Foundation filed.
  12. Feb 02 2018
    Brief amicus curiae of CTIA - The Wireless Association filed.
  13. Feb 02 2018
    Brief amicus curiae of ConocoPhillips Company filed.
  14. Feb 01 2018
    Brief amici curiae of Chamber of Commerce for the United States of America, et al. filed.
  15. Jan 26 2018
    Motion to extend the time to file a response is granted and the time is extended to and including March 5, 2018.
  16. Jan 22 2018
    Motion to extend the time to file a response from February 2, 2018 to March 5, 2018, submitted to The Clerk.
  17. Jan 16 2018
    Blanket Consent filed by counsel for both Petitioner, Gilead Sciences, Inc. and Respondents Jeffrey Campie and Sherilyn Campie.
  18. Dec 26 2017
    Petition for a writ of certiorari filed. (Response due February 2, 2018)