Response to FCA Alert Blog Entry about United States ex rel. Nelson v. Sanford-Brown, Ltd.

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As I mentioned in my very first post, one of the many reasons that I decided to invest time and energy into writing about the False Claims Act in this blog was to examine the issues of the day in a more moderate and balanced way than the approach taken by many commentators in this area. While there are many sources of information, including blogs, about recent developments under the False Claims Act, they typically fall into one of two camps—either pro-defendant or pro-relator. It is very difficult to find voices that seek a reasonable middle ground. This blog strives to stake out that middle ground, and I believe that the blog has achieved that goal so far.

This entry shares an experience that, I believe, highlights the source of the problem. Lawyers and commentators on either side of the False Claims Act are simply unwilling to engage in a thoughtful dialogue about the issues and instead entrench themselves in their own camps, unwilling to have their assumptions and beliefs challenged. The purpose of telling the story that follows is not to suggest that one side is right and the other is wrong, but merely to raise the question of whether healthy debate and dialogue is even possible.

Last week, the FCA Alert blog ran a story about the district court’s recent decision in United States ex rel. Nelson v. Sanford-Brown, Ltd., a False Claims Act case involving a for-profit college. The FCA Alert’s discussion of the case made broad, sweeping generalizations about the court’s decision, failed to acknowledge significant contrary statements in the opinion, and generally failed to capture accurately the state of the law in this area. (In the interest of full disclosure, the author of this post is currently involved in a False Claims Act suit involving for-profit colleges, is familiar with every FCA decision involving for-profit colleges, and is familiar with the factual and procedural background in the Nelson case, having studied the decision and case extensively.)

While the FCA Alert blog ostensibly invites readers to provide comments to its blog posts, when this author attempted to point out that that the post at issue may have contained some inaccuracies, the FCA Alert refused to publish the comments. Since this blog appears to be the only uncensored forum available to publish those comments, here they are:

This case is likely an aberration and outlier because of the uniquely limited facts available to the relator. This case was unique from others against for-profit colleges because the court had previously ruled that the relator could only pursue claims relating to one campus of the school, not the school generally. See Slip. Op. at 7, 9. This meant the relator had to show that the specific campus had falsely certified compliance with the regulations at issue.

Other circuit court decisions have recognized that the schools—rather than the individual campuses—submit numerous certifications of compliance that are conditions of payment. (Hendow in the Ninth Circuit; Main in the Seventh Circuit.) The court’s prior ruling under the public disclosure bar, which was unique to this relator, excluded a lot of evidence generally available in cases against for-profit colleges.

Additionally, the court recognized that the fraudulent inducement theory is available in these types of cases, Slip Op. at 8-9, but determined merely that the relator failed to adduce evidence to support this theory. That type of evidence is also generally available in other cases against for-profit colleges.”

As you can see, the proposed comment was respectful in its tenor, provided specific legal authority and citations to support its contentions, and was directly responsive to the post at issue. Even so, the authors/editors of FCA Alert refused to even acknowledge them or allow others to weigh in on the issues. Although I typically avoid rhetorical questions, what does it say about our profession and the False Claims Act bar in general when discussions of this nature are not permitted to happen?