Significantly, in Escobar, the Supreme Court gave its stamp of approval to the doctrine of implied false certification, a potentially game-changing FCA theory of recovery. In so doing, the court emphasized materiality as the ultimate litmus test for application of the implied certification FCA cause of action.

Business Opposition

A number of prominent pro-business lobbying groups (e.g., the U.S. Chamber of Commerce, the Washington Legal Foundation, etc.) had urged the court to either entirely disavow the implied certification cause of action, or, at best, adopt a restricted view of the concept, predicting a litigation feeding frenzy by rapacious whistleblower plaintiffs, targeting well-meaning government contractors hamstrung by their contracts with a regulation-choking federal government.

In a dramatic illustration of the recent unpredictability of the court, the unanimous decision embracing—with certain limitations, implied certifications—was authored by none other than Clarence Thomas, normally considered a staunch pro-business ally on the court.