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Andrew W. Schilling and Megan E. Whitehill Authored a Law360 Article, "Revisiting Bishop In Light Of Escobar"

Law360

Last year, the Second Circuit Court of Appeals in New York handed the banking industry some much-needed ammunition to fight back against False Claims Act suits premised on broad certifications of compliance. Specifically, in Bishop v. Wells Fargo & Co., the court affirmed the dismissal of a declined qui tam suit in which the relators had alleged that the defendant banks were not in compliance with federal banking laws and regulations when they borrowed money at favorable rates from the Fed’s discount window. In the absence of a specific, factually false statement or claim made by the banks, the relators resorted to theories of “legally false” express and implied certifications, arguing that requesting loans from the Fed while operating out of compliance with the federal banking laws was enough to impose FCA liability. The court expressed reluctance, however, to allow self-interested whistleblowers to police the highly regulated banking industry, concerned that endorsing the relators’ broad theories, at least in this context, could discourage banks from accessing the discount window.

The banks’ victory was short-lived, however. Eight months later, the U.S. Supreme Court vacated the Second Circuit’s decision in Bishop and sent it back to the circuit for further consideration in light of the Supreme Court’s intervening decision in Universal Health Services Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016). The Second Circuit is now poised to decide whether Escobar allows these relators to pursue these banks for FCA liability for requesting government funds while allegedly operating out of compliance with federal banking laws. The outcome of the case will be closely watched.

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Originally published in Law360; reprinted with permission.