The federal mail and wire fraud statutes prohibit a wide range of false or misleading statements. Sometimes questions arise as to when “omissions” are subject to prosecution. The black letter rule is that omissions give rise to prosecution when an individual has a fiduciary or other duty of disclosure.1 But sometimes an omission can also be the basis for prosecution without an affirmative duty of disclosure, such as when the omitted information renders statements that have actually been made false or at least misleading.2
This past term, the U.S. Supreme Court addressed a thorny issue concerning “omissions” in the context of the civil False Claims Act (FCA),3 which prohibits false and fraudulent monetary claims for payment made to the federal government. In Universal Health Services v. United States,4 decided in June 2016, the Supreme Court extended the FCA to a new category of omissions by adopting the “implied certification theory”—roughly, that claims for payment from the government can, in certain circumstances, implicitly certify that the payee has satisfied the legal requirements for payment.
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