Second Circuit Limits Rule 9(b) Pleading Requirements for Reverse False Claims Act Claims

The U.S. Court of Appeals for the Second Circuit (the “Court”) recently ruled that a False Claims Act (“FCA”) relator can satisfy Rule 9(b) without identifying every false claim underlying an alleged fraudulent scheme—but left open whether Rule 9(b) applies to certain reverse FCA claims at all.

In United States ex rel. Gallian v. AmerisourceBergen Corp., 2026 WL 2539817 (2d Cir. Aug. 28, 2026), the Court considered several FCA claims brought by a former reimbursement manager against her former employers. The Court held that, for direct FCA claims, a relator alleging a complex or far-reaching fraudulent scheme may satisfy Rule 9(b) by providing specific examples of false claims rather than identifying every false claim allegedly submitted to the government. The Court affirmed dismissal of the relator’s direct FCA claims, however, because she failed to identify a specific false claim. At the same time, the Court concluded that the relator adequately pleaded her reverse FCA claim and left unresolved whether Rule 9(b)’s heightened pleading requirements apply to reverse FCA claims that do not involve an affirmative misrepresentation or fraudulent concealment.

Background

The relator, a former reimbursement manager for the defendants, alleged that the defendants took advantage of discrepancies in their billing-management systems that caused the government to overpay them. She further alleged that the defendants concealed and retained those overpayments and falsely certified compliance with the requirements of government health programs.

The allegations included both direct and reverse FCA claims. Direct FCA claims generally involve submitting false claims or making false statements to obtain payment from the government. Reverse FCA claims, by contrast, involve knowingly concealing or knowingly and improperly avoiding or decreasing an obligation to pay money to the government. 31 U.S.C. § 3729(a)(1)(A)–(B), (G).

The defendants moved to dismiss, arguing that the relator failed to plead her claims with the particularity required by Federal Rule of Civil Procedure 9(b). The district court agreed and dismissed all of the relator’s claims with prejudice. The relator appealed.

Analysis

The Court’s analysis turned on whether and how Rule 9(b) applies to the two types of FCA claims. For direct claims, the Court addressed what a relator must identify when alleging a broad fraudulent scheme. For reverse claims, the Court considered a more fundamental question: whether Rule 9(b) applies when the alleged misconduct does not necessarily involve fraud.

Specific Examples of False Claims May Satisfy Rule 9(b)

The Court reaffirmed its case-by-case approach to Rule 9(b) in direct FCA cases. A relator need not identify every false claim allegedly submitted to the government. Instead, the complaint must contain sufficient factual allegations to support a strong inference that false claims were submitted.

The Court further held that, when a relator alleges a complex or far-reaching fraudulent scheme, examples of specific false claims may satisfy Rule 9(b). A relator therefore need not plead every instance of alleged fraud at the outset of the case.

The relator nevertheless failed to satisfy Rule 9(b). Although she alleged a broad fraudulent scheme, she did not identify a specific false claim submitted to the government. The Court therefore affirmed dismissal of her direct FCA claims.

Court Leaves Open Whether Rule 9(b) Applies to Reverse FCA Claims

The Court reached a different result on the relator’s reverse FCA claim. Unlike a direct FCA claim, a reverse FCA claim does not necessarily require an affirmative misrepresentation. Section 3729(a)(1)(G) also reaches conduct in which a defendant knowingly and improperly avoids or decreases an obligation to pay the government.

That distinction creates a different Rule 9(b) question. If a reverse FCA claim is based on an affirmative misrepresentation or fraudulent concealment, Rule 9(b)’s particularity requirement may apply. But a reverse FCA claim based on knowingly avoiding an obligation to pay the government may not involve fraud at all.

The Court raised—but did not resolve—whether Rule 9(b) applies to a reverse FCA claim that does not depend on an affirmative misrepresentation or fraudulent concealment. Instead, the Court assumed that Rule 9(b) applied to the relator’s reverse FCA claim and concluded that she adequately pleaded it.

The decision therefore leaves unresolved whether a relator must satisfy Rule 9(b) when pursuing a reverse FCA theory that does not sound in fraud.

Practical Takeaways

• Examples Can Satisfy Rule 9(b) for Direct FCA Claims. A relator alleging a broad or complex fraudulent scheme need not identify every false claim. Specific examples of false claims may be sufficient to satisfy Rule 9(b).
• A Relator Must Still Identify a Specific False Claim. Although representative examples may satisfy Rule 9(b), the relator in this case failed to plead her direct claims because she did not identify a specific false claim submitted to the government.
• Rule 9(b)’s Application to Reverse FCA Claims Remains Unsettled. The Court left open whether Rule 9(b) applies to reverse FCA claims that do not involve an affirmative misrepresentation or fraudulent concealment. That question could affect how relators plead reverse FCA claims in future cases.

If you have questions or would like more information about this topic, please contact:

• David Honig at (317) 977-1447 or dhonig@hallrender.com;
• Brian Sabey at (720) 282-2025 or bsabey@hallrender.com;
• Kennedy Bunch at (317) 977-1420 or kbunch@hallrender.com; or
• Your primary Hall Render contact.