DRAFT FOR ATTORNEY REVIEW — NOT FINAL

§ 881

Citation
§ 881
Parent Document
United States v. Southland Management Corp., 326 F.3d 669 (2002)
Effective Date
2002-05-22
Original Source
https://www.courtlistener.com/opinion/27565/united-states-v-southland-managem... ↗

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statement of statutory or regulatory compliance is material when
the certification is a prerequisite to receipt of government
funds. Thompson, 125 F.3d at 902. The materiality of the
certified statement is not dependent upon how large a role the
truth or falsity of the certification plays in the government’s
ultimate decision whether to remit payment.
     18
         The dissent maintains that Thompson is not dispositive
in the instant case because the certification requirement at
issue here has only a “formalistic connection with the payment
decision.” The dissent appears to suggest that a certification
requirement cannot be a “true” prerequisite to payment unless the
truth or falsity of that certification was the actual, “but-for”
cause of the government’s ultimate determination whether to remit
funds on the claim. We find this suggestion problematic for a
number of reasons. Initially, we are bound by our precedent in
Thompson, which concludes that “false certifications of
compliance create liability under the FCA when certification is a
prerequisite to obtaining a government benefit” without
suggesting any “but-for causation” caveat as advocated by the
dissent.
     Secondly, this interpretation appears inconsistent with the
“outcome materiality” requirement espoused by the dissent.
Kungys defines a material misrepresentation as a
misrepresentation that “has a natural tendency to influence or
was capable of influencing the decision of” the governmental
entity to which the statement was addressed. This definition
does not suggest that the misrepresentation must have actually
influenced the relevant governmental entity to be deemed
“material.” Indeed, as three members of the Court in Kungys
pointed out, a materiality requirement is not the equivalent of a
but-for causation requirement: