HULL, Circuit Judge:
In this qui tam action, the plaintiff-relator seeks to recover damages under the False Claims Act, 31 U.S.C. § 3729 et seq., as a result of alleged overbilling of the United States Government by the defendant medical testing company. The district court, however, twice dismissed the plaintiff's complaint for failing to provide the specificity required under Federal Rule of Civil Procedure 9(b). We affirm.
A. The Parties
This case revolves around the billing practices of the defendant, Laboratory Corporation of America, Inc., ("LabCorp"). LabCorp is an Atlanta-based company that performs medical testing services nationwide and specializes in providing testing on a contract basis to long-term care facilities ("LTCFs").
LTCFs, which include nursing homes, furnish skilled and unskilled care in a residential setting to patients that are often old or disabled. Many LTCF patients participate in medical insurance programs receiving funds from the United States Government ("Government"), such as Medicaid, Medicare, and the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS). Between the late 1980s and 1998, LabCorp provided laboratory testing services on a contract basis to at least 100 LTCFs in Georgia and at least three regional or national LTCF chains — Golden Age, Beverly, and Capital Care Management.
Plaintiff Jeffrey Scott Clausen ("Clausen") works in the medical testing industry. A resident of Georgia, he is a former employee of SmithKline Beecham Clinical Laboratories and identifies himself as a current competitor of LabCorp. He does
B. The Allegations
In his complaint, Clausen alleges that LabCorp engaged in a multi-faceted, decade-long campaign to defraud the Government as a result of its testing services for LTCFs.
Specifically, Clausen asserts that LabCorp engaged in six "schemes" that led it to submit false claims, either electronically or manually, to the Government through a fiscal intermediary that processes health insurance claims on its behalf. Clausen identifies the schemes, which overlap each other to some extent, as involving (1) self-referral, whereby LabCorp employees would establish standing orders for particular tests, for example every month, three months or annually, without requiring physicians' orders or without regard to medical necessity, (2) patient screening, whereby LabCorp would perform screening tests to establish a baseline for its records, (3) duplicative and unnecessary testing of patients with multiple disorders, (4) unbundling of tests, whereby multiple tests were given when a single test that included all of those multiple tests could have been given, (5) duplicative billing for blood draws, whereby all duplicative and unnecessary tests included charges for blood draws, and (6) duplicative billing of trip charges, whereby trip charges were assessed for unnecessary or duplicative trips or in excess of the number of actual trips made for legitimate tests.
At the core of most of these schemes is an allegation that LabCorp breached a cardinal rule of federal health insurance reimbursement policy: providers are generally entitled to be paid for medical testing only when such testing is (1) medically necessary and/or (2) done at the direction of a patient's physician. See, for example, 42 U.S.C. §§ 1395f(a), 1395x(v)(4), 1395y(a) (regarding Medicare and Medicaid testing reimbursement).
Because Clausen's appeal turns on the sufficiency of his pleadings, we first review the evolution of his complaint.
C. Clausen's Complaint
Pursuant to the False Claims Act, which permits citizens to file suit on behalf of the United States when it is the victim of fraud and abuse, Clausen filed a complaint under seal in the United States District Court for the Northern District of Georgia on July 28, 1997. The 11-page Complaint
This version of the complaint alleged that LabCorp had engaged in the six schemes, but it did not identify any LTCFs by name, include any documentary exhibits or explain the origin of its information.
D. Clausen's First Amended Complaint
Instead, exercising his option to amend the complaint prior to causing the seal to be lifted with its service, Clausen filed and served upon LabCorp his First Amended Complaint on May 10, 2000, with his current counsel added to the pleadings. This 23-page pleading reorganized the allegations into two counts — one regarding violations of the False Claims Act (Count I)
Clausen's First Amended Complaint used the patient list and standing order
While adding certain detail, the First Amended Complaint did not include any further allegations about what other unnamed LTCFs might have been involved in this arrangement, the specific dates or amounts of any claims submitted to the Government, or copies or detailed sources of information about the claims themselves.
E. LabCorp's First Motion to Dismiss
LabCorp moved to dismiss Clausen's First Amended Complaint on July 31, 2000, arguing that it failed to meet the required standard for pleading fraud under Federal Rule of Civil Procedure 9(b) ("Rule 9(b)"). The district court granted this motion as to Count I, ruling that (1) Rule 9(b)'s requirement that fraud be pleaded with particularity applies to False Claims Act actions, (2) Rule 9(b)'s pleading standard should not be relaxed here, and (3) Clausen failed to meet Rule 9(b)'s standard because he alleged no specific facts regarding the actual submission or timing of false claims and relied on conclusory statements, but that (4) Clausen could amend his complaint and attempt to come into compliance with the rule. United States ex rel. Clausen v. Lab. Corp. of Am., Inc., 198 F.R.D. 560 (N.D.Ga.2000).
The district court pointed out that Clausen's complaint makes relatively detailed statements about the alleged schemes carried out by LabCorp. The district court noted, however, that Clausen only ends the description with a conclusory summation that typically states "these practices resulted in the submission of false claims for payment to the United States." Id. at 563. The district court thus concluded, "Plaintiff has failed to identify a single claim that was actually submitted pursuant to the allegedly fraudulent schemes identified in the Amended Complaint. Essentially, Plaintiff has set out the process by which Defendants could have produced false claims, but provides no facts that this process did in fact result in the submission of false claims." Id. (emphasis in original).
F. Clausen's Second Amended Complaint
On December 29, 2000, Clausen filed his Second Amended Complaint, which deleted
Specifically, the 28-page revised pleading explained at greater length that the patient lists included evidence of the various schemes. This time Clausen attached one blank "Health Insurance Claim Form" known as a Health Care Financing Administration Form 1500. Health care providers complete Form 1500, either electronically or manually, when they seek reimbursement from a federal health insurance program. This sample Form 1500 contains Section 24, which has blanks for the date, type and place of service, medical test codes (known as the CPT codes) and diagnosis codes. Clausen also attached a table of medical test codes, which lists different types of tests, such as glucose, cholesterol, hematocrit and urinalysis.
More importantly, Section 24 of Form 1500 also has blanks for the provider to list the financial charges for each separate service or test. This sample Form 1500 also contains Sections 28, 29 and 30, also in blank, for total charges, amount paid and balance due, respectively.
The revised pleading also changed the allegations that the schemes had simply "resulted in the submission of false claims" via manual or electronic Form 1500s to intermediaries to state that electronic versions were submitted "for the services provided on the date of service or within a few days thereafter."
The Second Amended Complaint suggested one can understand many details about the alleged false claims by (1) looking at one of the three LTCF patient lists identifying what tests each patient was receiving,
But still no copies of a single actual bill or claim or payment were provided. No amounts of any charges by LabCorp were identified. No actual dates of claims were alleged. Not a single completed Form 1500 was provided. No policies about billing or even second-hand information about billing practices were described, other than to state that electronic Form 1500s with certain medical test codes were used. Basically, Clausen did not add any billing information to support his allegation that actual false claims were submitted for payment, such as the amount of any charges. Instead he attached one blank claim form and alleged that certain tests would have been billed on this form with certain test and diagnostic codes filled in.
G. LabCorp's Second Motion to Dismiss
On February 14, 2001, LabCorp filed a motion to dismiss Clausen's Second Amended Complaint. On May 16, 2001,
Clausen timely appealed the dismissal of his complaints.
We initially discuss the False Claims Act, then review Federal Rules 8(a) and 9(b), and turn to Clausen's complaints.
A. The False Claims Act
The False Claims Act ("the Act") permits private persons to file a form of civil action (known as qui tam) against, and recover damages on behalf of the United States from, any person who:
31 U.S.C. § 3729(a)(1)-(2)(footnotes added). As the Supreme Court has often observed, this statute "was enacted in 1863 with the principal goal of stopping the massive frauds perpetrated by large [private] contractors during the Civil War." Vt. Agency of Natural Res. v. Stevens, 529 U.S. 765, 781, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (quotations omitted). See also Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1237 n. 1 (11th Cir.1999) ("The purpose of the Act, then and now, is to encourage private individuals who are aware of fraud being perpetrated against the government to bring such information forward.") (citation omitted); United States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1496-98 (11th Cir.1991) (tracing history of Act).
The alleged impropriety may not be the subject of a pending Government action, or publicly disclosed information of which the accuser does not have direct and independent knowledge. Id. § 3730(e). Statutory penalties include a civil penalty of between $5,000 and $10,000 per claim and treble
B. Federal Rules of Civil Procedure 8(a) & 9(b)
Generally, federal civil complaints need only state "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). And each averment should be "simple, concise, and direct," with no technical form of pleading required. Fed.R.Civ.P. 8(e). However, "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." Fed.R.Civ.P. 9(b).
On appeal, Clausen asserts that the district court incorrectly chose to apply Rule 9(b)'s particularity requirements to actions under the False Claims Act. He asserts that this Court has never "squarely analyzed" this issue, and that Rule 9(b) should not apply here because the False Claims Act creates liability for false, but not necessarily fraudulent, claims and does not require proof of specific intent.
First, this Court has addressed the application of Rule 9(b) to actions under the False Claims Act. In United States ex rel. Cooper v. Blue Cross & Blue Shield of Fla., we agreed with the district court that a False Claims Act relator alleging a health plan administrator improperly submitted claims to Medicare needed to comply with Rule 9(b). 19 F.3d 562, 568-69 (11th Cir.1994) (per curiam). In the context of discussing limitations on the ability of plaintiffs to bring False Claims Act suits when certain information has been publicly disclosed, we observed that Rule 9(b) prevents "[s]peculative suits against innocent actors for fraud," and explained that under Rule 9(b) allegations of fraud "must include facts as to time, place, and substance of the defendant's alleged fraud." Id. at 566-67 (citing Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir.1988)). "This requirement makes it hard for many persons to bring a qui tam suit and guards against `guilt by association.'" Id. at 567. Turning to whether the plaintiff met the pleading requirements of Rule 9(b), we continued:
Id. at 568. Despite this holding, however, we remanded the case because the plaintiff was entitled to "one chance to amend the complaint and bring it into compliance with the rule." Id. at 568-69.
Clausen believes Cooper analyzed the application of Rule 9(b) but not the threshold question of whether Rule 9(b) applies to all False Claims Act actions,
We believe this is required because the Act subjects entities that knowingly submit "false or fraudulent" claims to the Government for payment or approval — or knowingly make, use, or cause to be made or used a false record or statement to get such claims paid or approved — to civil liability. 31 U.S.C. § 3729(a) (using other language such as "conspires to defraud" and "intending to defraud"). In addition, the Supreme Court and this Court have consistently recognized the Act as an anti-fraud statute. See, for example, Stevens, 529 U.S. at 781, 120 S.Ct. 1858; United States v. Neifert-White Co., 390 U.S. 228, 233, 88 S.Ct. 959, 19 L.Ed.2d 1061 (1968) (stating it "protect[s] the funds and property of the Government from fraudulent claims") (citation and quotation omitted); Ragsdale, 193 F.3d at 1237 n. 1. And, regardless of whether the elements or descriptions of a False Claims Act action are precisely the same as common-law fraud, this Court has never required such overlap as a prerequisite for the application of Rule 9(b) to parallel statutory realms. See Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir.2001) (applying Rule 9(b) to securities fraud action); Durham, 847 F.2d at 1511 (applying Rule 9(b) to mail fraud allegation in RICO action).
Thus, we agree with our sister circuits and a number of district courts in this circuit that have applied Rule 9(b) to False Claims Act actions.
C. The Dictates of Rule 9(b)
This Court has stated its views on what Rule 9(b) requires a plaintiff to plead and what purpose the rule serves. In Ziemba, for example, we observed that when fraud is alleged:
256 F.3d at 1202 (quotations and citations omitted).
Thus, this Court has endorsed the dismissal of pleadings for failing to meet Rule 9(b)'s standards. See, for example, id. at 1210 (holding that despite existence of red flags, "series of inferences is too tenuous" to believe auditors knew of or were reckless in disregarding fraud when no "`tips,' letters, or conversations" supporting such knowledge were identified in complaint); Hendley v. Am. Nat'l Fire Ins. Co., 842 F.2d 267, 269 (11th Cir.1988) (concluding that Rule 9(b) was not satisfied when plaintiff "steadfastly refused to offer specifics" and "never earmarked any facts as demonstrative of fraud"); Friedlander v. Nims, 755 F.2d 810, 813-14 (11th Cir.1985) (concluding that although Rule 9(b) dismissal is "severe sanction," plaintiff's decision to ignore court's "sound and proper" recommendations about how to correct pleading deficiencies concerning scope of employee's authority warranted dismissal); Summer v. Land & Leisure, Inc., 664 F.2d 965, 970-71 (5th Cir. Unit B 1981) (affirming Rule 9(b) dismissal because "the complaint includes only conclusory allegations of fraudulent concealment").
Thus, in Cooper, this Court's only published opinion applying Rule 9(b) to allegations under the False Claims Act, we concluded that a plaintiff must plead "facts as to time, place, and substance of the defendant's alleged fraud," specifically "the details of the defendants' allegedly fraudulent acts, when they occurred, and who engaged in them." 19 F.3d at 567-68; see also Stinson, 755 F.Supp. at 1052 (noting that when Rule 9(b) applies, "pleadings generally cannot be based on information and belief") (quoting Stern v. Leucadia
D. Clausen's Complaints
Applying Rule 9(b), the district court concluded that both Clausen's First Amended Complaint and his Second Amended Complaint suffered from a fatal flaw. The court observed that the First Amended Complaint "does not identify any specific claims that were submitted to the United States or identify the dates on which those claims were presented to the government" and "relies exclusively on conclusory allegations of fraudulent billing." 198 F.R.D. at 564. Of the Second Amended Complaint, which had added the conclusory statements that LabCorp submitted for specified tests on the "date of service or within a few days thereafter," the district court stated that the pleading "suffers from the same defect" — a lack of specific information about the actual submission of claims to the Government. We agree with these conclusions.
The False Claims Act does not create liability merely for a health care provider's disregard of Government regulations or improper internal policies unless, as a result of such acts, the provider knowingly asks the Government to pay amounts it does not owe. Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 785 (4th Cir.1999) ("The statute attaches liability, not to the underlying fraudulent activity or to the government's wrongful payment, but to the `claim for payment.' Therefore, a central question in False Claims Act cases is whether the defendant ever presented a `false or fraudulent claim' to the government.") (quoting United States v. Rivera, 55 F.3d 703, 709 (1st Cir.1995)); Russell, 193 F.3d at 308 ("Because such statements or claims are among the circumstances constituting fraud in a False Claims Act suit, these must be pled with particularity under Rule 9(b)").
As such, Rule 9(b)'s directive that "the circumstances constituting fraud or mistake shall be stated with particularity" does not permit a False Claims Act plaintiff merely to describe a private scheme in detail but then to allege simply and without any stated reason for his belief that claims requesting illegal payments must have been submitted, were likely submitted or should have been submitted to the Government. As in Cooper, and as with every other facet of a necessary False Claims Act allegation, if Rule 9(b) is to be adhered to, some indicia of reliability must be given in the complaint to support the allegation of an actual false claim for payment being made to the Government. See, for example, Butler, 101 F.Supp.2d at 1369 (applying Rule 9(b) and dismissing amended complaint under Act due in part to plaintiff "plead[ing] a fraudulent scheme of conduct which may well be prohibited by law" but not pleading "any specific occurrences of a false claim").
In reviewing Clausen's complaints and taking their allegations as true, we
Thus, Clausen's allegations have fallen short. And at no stage of this case did they reach their mark. For example, in Clausen's First Amended Complaint, he described the various schemes LabCorp allegedly implemented to generate unneeded or duplicative medical tests on unsuspecting LTCF patients. He even provided three LTCFs' patient lists for a few years and a handful of patients' lab results and standing orders to illustrate the tests LabCorp had performed. This set the stage for the consummation of this alleged nefarious plot to recover unjustified amounts of taxpayer money. But, as to the plot's execution, Clausen merely offers conclusory statements, and does not adequately allege when — or even if — the schemes were brought to fruition. He merely alleged that "these practices resulted in the submission of false claims for payment to the United States." No amounts of charges were identified. No actual dates were alleged. No policies about billing or even second-hand information about billing practices were described, other than to state that electronic HCFA Form 1500s with medical test codes were used. No copy of a single bill or payment was provided.
Unfortunately for Clausen, despite the district court's admonishments to include more information about claims actually submitted — including identification of actual, and not merely possible or likely, claims submitted, items on particular claim forms and the dates on which they were submitted to the Government — to attempt to comply with Rule 9(b), his Second Amended Complaint did not add much helpful information. To Clausen's credit, he preserved all of his allegations about the various schemes engaged in by LabCorp, attached a blank Form 1500
When Rule 9(b) applies to a complaint, a plaintiff is not expected to actually prove his allegations, and we defer to the properly pleaded allegations of the complaint. But we cannot be left wondering whether a plaintiff has offered mere conjecture or a specifically pleaded allegation on an essential element of the lawsuit.
For reasons stated herein, we AFFIRM the district court's dismissal of Clausen's First Amended Complaint and Second Amended Complaint for failure to comply with Federal Rule of Civil Procedure 9(b).
BARKETT, Circuit Judge, dissenting:
Clausen's complaint is not a model of clarity, but in my view it adequately complies with the requirements of Rule 9(b). Although not explicitly drawing a distinction, the majority characterizes the defect of Clausen's complaint in two ways: first, as a failure to allege the specific dates or amounts of false claims submitted to the government; and second, as a failure to provide a "factual basis" for the claim that bills were submitted to the government "on or within a few days" of the dates on which LabCorp allegedly performed unnecessary, duplicative, or otherwise improper tests. I will discuss these concerns separately, since they implicate different legal issues.
I. Dates and Amounts of False Claims
Rule 9(b) states that "the circumstances constituting fraud or mistake shall be stated with particularity." By itself, of course, that language does not tell us whether the failure to specify the amount of the false claim, or to indicate the precise date on which it was submitted rather than a range of a few days, constitutes a lack of particularity that is fatal to the complaint. It is therefore necessary to look to the purposes of Rule 9(b), which the majority identifies, but, apart from one footnote, does not discuss: "The particularity rule serves an important purpose in fraud actions by alerting defendants to the precise misconduct with which they are charged and protecting defendants against spurious charges of immoral and fraudulent behavior." Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir.2001) (quotations and citations omitted). It is also worth recalling that the district court deemed Clausen's complaint to have complied with the particularity requirements of Rule 9(b) at least insofar as it described the various arrangements or "schemes" by which LabCorp would allegedly perform medically unnecessary tests. Moreover, the complaint identified specific patients and specific dates on which those tests were performed. Thus, the question is whether a complaint that adequately alleges the schemes by which medically unnecessary tests are performed, and identifies the specific dates and patients on which those tests were performed, nonetheless frustrates the purposes of Rule 9(b) if it does not identify the specific amount of each claim and states that each claim was submitted to the government "on or within a few days" of the date on which the test was performed.
Of course, if there was no claim for payment, then there was no fraud, but Clausen's complaint does allege that LabCorp billed for the tests performed as a result of these schemes.
So let us consider the second purpose: protecting defendants against spurious charges of immoral and fraudulent behavior. Put another way, the rule protects defendants from frivolous lawsuits and from undeserved harm to their goodwill and reputation. See, e.g., Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir.1999). The particularity requirement accomplishes this purpose by requiring would—be plaintiffs to have a reasonable (and reasonably precise) basis for their allegations prior to discovery. But for the same reason that Clausen's allegations adequately alert LabCorp to the misconduct it must defend against, his complaint adequately satisfies the second purpose of Rule 9(b): it alleges with particularity the facts constituting the essence of the fraudulent conduct. It lays out the circumstances of the fraud that would not be a matter of common knowledge or common sense: namely, the schemes by which LabCorp allegedly performed medically unnecessary tests.
As the majority notes, "[a]s a corporate outsider, [Clausen] may have had to work
II. The Factual Basis for Clausen's Allegations as to Claims for Payment
The majority suggests that Clausen's allegations regarding LabCorp's submission of claims for payment should be discounted or disregarded because they are "conclusory." Clausen, the majority complains, cites no facts in support of his allegation that bills were submitted for the tests performed. However, the majority itself identifies a potential problem with its argument: "When Rule 9(b) applies to a complaint, a plaintiff is not expected to actually prove his allegations and we defer to the properly pleaded allegations of the complaint." "But," the majority continues, "we cannot be left wondering whether a plaintiff has offered mere conjecture or a specifically pleaded allegation on an essential element of the lawsuit."
The "mere conjecture" to which the majority alludes, of course, is the allegation that LabCorp actually billed for the tests it performed. Taking as true Clausen's allegations regarding LabCorp's schemes — as we must on a motion to dismiss — his allegations regarding billing would appear to be mere conjecture only if we were willing to attribute to LabCorp a highly unusual business model that consisted in arranging for the systematic administration of medically unnecessary tests for which it never intended to be paid. I see nothing alarmingly conjectural about Clausen's allegation that LabCorp billed for the allegedly unnecessary tests it methodically took the trouble to order.
The majority wants Clausen to provide "copies of bills or payments." But that is to say the majority asks for proof, and proof is not required at the pleading stage. The majority also wants identification of the amounts of charges and the actual dates of claim submission. But the majority does not suggest that Clausen had any pre-discovery means of obtaining that information, so it asks for the impossible. Finally, the majority wants "policies about billing" or "second-hand information about billing practices." Perhaps Clausen could have found some information indicating that LabCorp — whose business is to perform medical tests for payment — had a policy of billing for the tests it performed. But here, the majority simply asks for the obvious.
The leading commentator in this field also agrees with these decisions. See John T. Boese, Civil False Claims and Qui Tam Actions § 5.04 (2d ed. 2000 & Supp.2002) ("It is widely accepted by courts that because the essence of a False Claims Act case is fraud, Rule 9(b) applies to [False Claims Act] cases. As a result, plaintiffs in [False Claims Act] cases, whether the government, qui tam relator, or both, must make far more detailed allegations in [False Claims Act] complaints than in most litigation.... The applicability of Rule 9(b) to qui tam actions is by now beyond dispute.").
We find it ironic that Clausen was himself a relator in LaCorte, in which the Third Circuit barred him from bringing a False Claims Act lawsuit against SmithKline Beecham regarding medical testing after a similar, but not identical, lawsuit had already been brought. 149 F.3d at 237. In rejecting Clausen's argument that the decision in LaCorte would lead to relators pleading "a very broad cause of action so as to preempt claims by later plaintiffs," the Third Circuit observed that Rule 9(b) "provides sufficient deterrence against overly broad allegations." Id. at 234 (citing Cooper).
In addition, because of our holding, it is unnecessary to speculate whether Clausen adequately alleged who submitted any false claims. See, for example, United States ex rel. Butler v. Magellan Health Servs., Inc., 74 F.Supp.2d 1201, 1216-17 (M.D.Fla.1999) (noting that "complaint fails to refer to specific employees who may have been involved in submitting false claims") (discussing United States ex rel. Robinson v. Northrop, 149 F.R.D. 142 (N.D.Ill.1993)).
We cannot make assumptions about a False Claims Act defendant's submission of actual claims to the Government without stripping all meaning from Rule 9(b)'s requirement of specificity or ignoring that the "true essence of the fraud" of a False Claims Act action involves an actual claim for payment and not just a preparatory scheme. Even the example of patient H.L. cited by the dissent, while providing details of medical treatment, offers no factual basis for the conclusory allegation that LabCorp submitted actual improper claims for payment to the Government on the "date of service or within a few days thereafter."
Contrary to the dissent's suggestion, we cannot (1) presume what LabCorp's billing policies were and assume LabCorp actually billed the Government in whole or in part for all tests it "took the trouble to order," (2) speculate that Clausen's late-in-the-game addition of vague and meaningless ranges for dates of submission of claims must "indicate he had some familiarity" with LabCorp's procedures, and (3) take comfort in the fact that the relevant false claims were not alleged to have been submitted "any differently" from legitimate payments for which we also have no specific information. We must leave the burden of pleading the particular facts behind the complaint's allegations to the plaintiff in this case.
We add that our holding that Rule 9(b) has not been satisfied applies equally to Clausen's claims styled as testing irregularities (the self-referral, duplicative test, screening and unbundling schemes) and billing irregularities (the blood draw and trip charge schemes) because, as stated previously, a false claim must be presented for any liability to attach under the False Claims Act. And Clausen provides no support for his allegations that any claims were actually submitted.
Clausen also argues that Rule 9(b) should be relaxed because the fraud was complex. This exception may apply in appropriate circumstances to aid those alleging prolonged multi-act schemes. However, even under this exception, Clausen would have to allege at least some examples of actual false claims to lay a complete foundation for the rest of his allegations, which he has failed to do. See, for example, Thompson, 125 F.3d at 903 (affirming dismissal of allegations after recognizing that while pleading on information and belief may be sufficient under this exception, it does not constitute a "license to base claims of fraud on speculation and conclusory allegations" and that "the complaint must set forth a factual basis for such belief") (citation omitted). Compare Durham, 847 F.2d at 1512 n. 12 (approving of allegation that mails were used for a pattern of fraudulent activity based on an affidavit identifying use of the mails and describing the sender, title, recipient and precise date and method of sending) with Butler, 101 F.Supp.2d at 1369 (noting that while the pleaded allegations are "illustrative of the type of fraud Plaintiff alleges," action must be dismissed because it did not "address any false claim or any document bearing a false claim on the part of the [eight health care facility] Defendants").