Page:U.S. ex rel. Schutte v. SuperValu.pdf/2

2 that, by not reporting them, SuperValu submitted false claims. However, the court granted SuperValu summary judgment based on the scienter element, holding SuperValu could not have acted “knowingly.” In a separate case, the court granted Safeway summary judgment on that same basis. The Seventh Circuit affirmed in both cases, relying heavily on ''Safeco Ins. Co. of America v. Burr'', 551 U. S. 47—a case that interpreted the term “willfully” in the Fair Credit Reporting Act. As the Seventh Circuit read Safeco, the companies could not have acted “knowingly” if their actions were consistent with an objectively reasonable interpretation of the phrase “usual and customary.” Thus, the Seventh Circuit concluded, the companies were entitled to summary judgment even if they actually thought that their discounted prices were their “usual and customary” prices (and thus thought their claims were false).

First, the facial ambiguity of the phrase “usual and customary” does