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Rh Again, that tracks traditional common-law fraud, which ordinarily “depends on a subjective test” and the defendant’s “culpable state of mind.” Id., §10, Comment a. What typically matters at common law is whether the defendant made the false statement “without belief in its truth or recklessly, careless of whether it is true or false.” Restatement (Second) of Torts §526, Comment e. If a defendant knows that he “lack[s an] honest belief” in the statement’s truth, that is often enough to establish scienter for fraud. Id., Comment d. [sic]; Dobbs §665, at 647.

Both the text and the common law also point to what the defendant thought when submitting the false claim—not what the defendant may have thought after submitting it. As noted above, the text encompasses those who “knowingly presen[t] … a false or fraudulent claim”; the term “knowingly” thus modifies present-tense verbs like “presents.” §3729(a)(1)(A). As such, the focus is not, as respondents would have it, on post hoc interpretations that might have rendered their claims accurate. It is instead on what the defendant knew when presenting the claim. See also Restatement (Second) of Torts §526, Comment e (“It is enough that being conscious that he has neither knowledge nor belief in the existence of the matter he chooses to assert it as a fact”); accord, Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U. S. 93, 105 (2016) (“[C]ulpability is generally measured against the knowledge of the actor at the time of the challenged conduct”).

The difficulty here, however, is that the phrase “usual and customary” is, on its face, less than perfectly clear. We assume (as the District Court ruled in SuperValu’s case)