Whether a relator may use statistical analyses to plausibly allege the submission of false claims under the False Claims Act

QUESTIONS PRESENTED Numerous circuits have held that a relator may state a claim under the False Claims Act, 31 U.S.C. §§ 3729-32 (the “FCA”), by alleging “particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.” U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190 (5th Cir. 2009). In U.S. ex rel. Customs Fraud Investigations, LLC v. Victaulic Co., the Third Circuit found that a relator may plausibly allege reliable indicia of the submission of false claims through the use of statistical analyses. 839 F.3d 242, 256-58 (3d Cir. 2016). 1. In using statistical analyses to meet federal pleading standards, to what extent must a relator exclude possible alternative explanations for alleged misconduct? 2. Did the Fifth Circuit err when it failed to credit Petitioner’s statistical analyses because of what it perceived to be an “obvious alternative explanation,” even though the relator pleaded facts tending to exclude the court’s explanation?