Page:U.S. ex rel. Schutte v. SuperValu.pdf/19

16 P. 2d 471, 474 (1959). That is because such a statement says something about both the correct meaning of building codes and the facts about the home’s construction. Ibid.; see also Hoyt Properties, Inc. v. Production Resource Group, L. L. C., 736 N. W. 2d 313, 319 (Minn. 2007). And homeowners might justifiably rely on that latter representation about the facts, which thus could be actionable as fraud.

Respondents’ disclosures here sound more like our hypothetical plumber, not our hypothetical legal advisor. Rather than saying, “this is what ‘usual and customary’ means,” respondents essentially said, “this is what our ‘usual and customary’ prices are.” In doing so, they plainly implied facts about their prices that were not known to the plan sponsors, pharmacy benefit managers, and state Medicaid agencies that received their claims. Petitioners’ cases thus make out a valid fraud theory even under respondents’ common-law rule.

Under the FCA, petitioners may establish scienter by showing that respondents (1) actually knew that their reported prices were not their “usual and customary” prices when they reported those prices, (2) were aware of a substantial risk that their higher, retail prices were not their “usual and customary” prices and intentionally avoided learning whether their reports were accurate, or (3) were aware of such a substantial and unjustifiable risk but submitted the claims anyway. §3729(b)(1)(A). If petitioners can make that showing, then it does not matter whether some other, objectively reasonable interpretation of “usual and customary” would point to respondents’ higher prices. For scienter, it is enough if respondents believed that their claims were not accurate.

We need not address any of the other factual or legal disputes involved in these cases, including whether petitioners have made a showing sufficient under the correct legal