What Is “Knowing” under the FCA? Supreme Court to Consider Impact of Ambiguous Regulations

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Jennifer A. ShortBridget Mayer Briggs, and Tjasse L. Fritz ●

Jennifer A. Short headshot image
Bridget Mayer Briggs headshot image
Tjasse L. Fritz headshot image

A successful False Claims Act (“FCA”) claim must show that the defendant submitted a false claim or statement “knowingly.” The “knowing” element—the scienter prong—depends on whether the defendant actually knew that the claim or statement was incorrect, or recklessly disregarded the facts or legal requirements that rendered the claim “false.” But, of course, government regulations, contract terms, and grant requirements can be incredibly complex and difficult to understand. When the ground rules are unclear, how does a company “know” that its claims for payment may be false under the FCA?

What does the FCA say about “knowing”?

The FCA defines “knowing” as (1) having “actual knowledge of the information;” (2) acting “in deliberate ignorance of the truth or falsity of the information;” or (3) acting “in reckless disregard of the truth or falsity of the information.” 31 U.S.C. § 3729(b). A “specific intent to defraud” is not required for liability under the FCA. 

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New White House Guidance Details Infrastructure Spending Priorities 

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Brian S. Gocial

With the passage of the Infrastructure Investment and Jobs Act (“IIJA”), America is preparing for a flood of infrastructure spending not seen since the New Deal. Indeed, the IIJA allocates funding to over 350 distinct programs across more than a dozen federal departments and agencies. Attention now turns to the federal agencies, and state and local officials who are responsible for implementing these new programs. To that end, the Biden administration recently released A Guidebook to the Bipartisan Infrastructure Law for State, Local, Tribal, and Territorial Governments, and Other Partners to assist state, local, and tribal leaders to “know what to apply for, who to contact, and how to get ready to rebuild.”

Notably this is only the first version of this guidance and interested parties should continue to monitor the guidance in the coming weeks to stay up to date on the latest deadlines and details. In addition, the Biden administration released an accompanying data file on Build.gov that allows users to quickly sort programs funded under the law by fields like agency, amount, eligible recipient, or program name.

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