Second Circuit Adopts “Representative Sample” Pleading for Direct FCA Claims While Reviving Reverse FCA Liability for Concealed Overpayment Retention

1. Introduction

In United States v. Amerisource Bergen Corp. (2d Cir. Aug. 28, 2026), relator Patsy Gallian—formerly a reimbursement manager at US Bioservices Corporation and related entities (collectively “US Bio”)—brought qui tam claims under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729–3732. She alleged that US Bio (i) caused government healthcare programs to overpay through billing/systemic practices, (ii) hid those overpayments in internal accounts, and (iii) later converted them into revenue via “pickups,” rather than returning funds owed to the government.

The appeal presented three central issues: (1) whether Gallian’s “direct” FCA claims under 31 U.S.C. § 3729(a)(1)(A)–(B) satisfied Rule 9(b)’s heightened pleading requirements; (2) whether her “reverse” FCA claim under 31 U.S.C. § 3729(a)(1)(G) was adequately pleaded; and (3) whether the district court abused its discretion by denying leave to amend the direct-claim theories.

2. Summary of the Opinion

  • Direct FCA claims (affirmed dismissal): The Second Circuit held that Gallian failed to meet Fed. R. Civ. P. 9(b) for her direct FCA claims because she did not identify specific misrepresentations/claims submitted to the government and did not plausibly allege that such information was “peculiarly” within US Bio’s exclusive possession.
  • Reverse FCA claim (vacated dismissal): The court held that Gallian plausibly alleged a reverse FCA claim where the complaint described identifiable government overpayments, US Bio’s established duty to report and return them, and conduct to conceal/avoid repayment by reclassifying credits and transferring them into revenue.
  • Leave to amend (affirmed denial): No abuse of discretion occurred because Gallian had notice of deficiencies and opportunities to amend but did not propose concrete amendments curing the Rule 9(b) shortcomings for the direct-claim theories.

3. Analysis

A. Precedents Cited

1) Pleading standards and Rule 9(b) in FCA cases

  • United States ex rel. Ladas v. Exelis, Inc. and Shields v. Citytrust Bancorp, Inc.
    The panel grounded its Rule 9(b) articulation in the classic Second Circuit formulation: a fraud plaintiff must specify the allegedly fraudulent statements, identify the speaker, state where/when they were made, and explain why they were fraudulent. These cases supplied the “baseline” particularity framework the court used to measure Gallian’s direct FCA pleading.
  • United States ex rel. Chorches for Bankr. Est. of Fabula v. American Med. Response, Inc.
    Chorches was the fulcrum for Gallian’s attempt to proceed without identifying specific false invoices. Chorches permits FCA claims to move forward absent specific claim examples when the relator pleads (i) plausible allegations supporting a strong inference that false claims were submitted and (ii) that identifying information is “peculiarly within” the defendant’s knowledge. The panel distinguished Chorches on the facts: Gallian’s role (Senior Reimbursement Manager responsible for billing-related tasks) made it implausible—without additional allegations—that she lacked access to claim-level information.
  • United States ex rel. Camburn v. Novartis Pharms. Corp.
    Camburn had noted (without deciding) a recurring question: must an FCA relator plead “every instance” of fraud, or can a “representative sample” suffice? AmerisourceBergen resolves that open point for the Second Circuit (at least for FCA claims involving fraudulent misstatements): a relator who pleads a complex scheme with particularity and provides examples of specific false claims may proceed to discovery on the broader scheme.
  • United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., United States ex rel. Joshi v. St. Luke's Hosp., Inc., and United States ex rel. Clausen v. Lab'y Corp. of America, Inc.
    These sister-circuit authorities supplied the model for the new Second Circuit rule: “representative examples” of false claims are enough when paired with particularized allegations of a complex fraudulent scheme. The panel adopted their reasoning that Rule 9(b) is about “fair notice,” not pleading the impossible.
  • United States v. Strock
    Strock was invoked for Rule 9(b)’s animating concern—fair notice—and for the idea that particularity can be calibrated to context, consistent with allowing representative examples in large schemes.
  • Miller v. United States ex rel. Miller and Universal Health Servs., Inc. v. United States
    These cases framed the FCA’s purpose and seriousness (“significant penalties”), and Miller in particular supplied key reverse-FCA doctrine the court applied (what counts as an “obligation,” and when affirmative misrepresentation is not required).
  • United States ex rel. Foreman v. AECOM
    Foreman was central in two ways: (i) it reiterated Rule 9(b)’s applicability to reverse false claims in earlier Second Circuit statements; and (ii) it established the Second Circuit’s bar on “mirrored” reverse FCA claims—i.e., reverse claims that simply repackage a direct false-claim theory based on failure to repay amounts obtained by the same fraud.
  • United States ex rel. Henig v. Amazon.com, Inc.
    Cited as an example where the Second Circuit applied Rule 9(b) to a reverse FCA claim involving affirmative misrepresentations, reinforcing the distinction the panel drew between misrepresentation-based reverse theories and other reverse theories that might not inherently sound in fraud.

2) Reverse FCA doctrine and the “obligation” requirement

  • United States ex rel. Customs Fraud Investigations, LLC. v. Victaulic Co.
    The panel relied on Victaulic for the post-2009-amendment proposition that a reverse FCA claim need not rest on an affirmative false statement; concealment or avoidance of an obligation can suffice.
  • Olson v. Fairview Health Servs. of Minn., United States ex rel. Kini v. Tata Consultancy Servs., Ltd., and United States ex rel. Sibley v. Univ. of Chi. Med. Ctr., plus United States ex rel. Heath v. AT&T, Inc.
    These authorities were cited to show other circuits often apply Rule 9(b) to reverse FCA claims, typically analyzing the “who, what, when, where, and how” of the alleged concealment/avoidance.
  • Neder v. United States and Armstrong v. McAlpin
    These cases were used to underscore a conceptual point: concealment and misrepresentation are traditionally core to “fraud,” supporting the idea that certain reverse FCA theories (false record or concealment) naturally trigger Rule 9(b), while “avoid/decrease” might not always.

3) The Second Circuit’s “mirrored” reverse-claim bar and emerging tension

  • United States v. Mount Sinai Hosp.
    Quoted via Foreman to explain why mirrored reverse claims are barred: otherwise every direct FCA violation would automatically become a reverse FCA violation upon non-repayment, collapsing statutory distinctions.
  • United States ex rel. Kyer v. Thomas Health Sys., Inc. and United States ex rel. Prather v. Brookdale Senior Living Cmtys., Inc.
    Kyer flagged doubts about Foreman’s “this-or-that” reading, noting possible “daylight” because direct FCA liability does not require actual receipt of funds. Prather reflects a more permissive view of reverse claims based on retention of overpayments caused by direct violations. AmerisourceBergen acknowledges this disagreement but applies Foreman as binding Second Circuit law, while finding Gallian’s reverse theory sufficiently distinct.

4) Pleading concealment with particularity

  • Oden v. Bos. Sci. Corp. and Woods v. Maytag Co., plus Soroof Trading Dev. Co. v. GE Fuel Cell Sys., LLC and Manhattan Motorcars, Inc. v. Automobili Lamborghini, S.p.A.
    The panel drew on these district-court formulations for how to plead fraudulent concealment when there is no single affirmative misstatement: identify the omissions, responsible persons, contextual mechanics of the misleading conduct, and what the defendant obtained.

5) Other cited authorities supporting procedural posture and related doctrines

  • Schiebel v. Schoharie Cent. Sch. Dist. (facts accepted as true on review), and United States ex rel. Foreman v. AECOM / Mirkin v. XOOM Energy, LLC (de novo review and pleading posture).
  • Luce v. Edelstein (Rule 9(b) and group pleading where alter ego theory attributes acts), with alter ego examples: United States v. Dynamic Visions Inc., United States v. LabQ Clinical Diagnostics, LLC, and United States ex rel. Rubar v. Hayner Hoyt Corp.
  • Solomon v. Flipps Media, Inc. (affirming denial of leave to amend after notice of deficiencies and failure to cure).
  • Univ. Health Servs., Inc. v. United States ex. rel. Escobar (materiality), and district cases discussing reverse-FCA materiality uncertainty: United States ex rel. Ormsby v. Sutter Health and United States ex rel. Frey v. Health Mgmt. Sys., Inc.

B. Legal Reasoning

1) A new Second Circuit rule: “representative sample” pleading can satisfy Rule 9(b) for direct FCA claims involving misstatements

The opinion’s most explicit doctrinal development is its adoption of the “representative examples” approach for direct FCA claims involving fraudulent misstatements. The court held:

Where a relator pleads a complex and far-reaching fraudulent scheme with particularity, and provides examples of specific false claims submitted to the government pursuant to that scheme, the relator may proceed to discovery on the entire fraudulent scheme.

This resolves the question flagged in United States ex rel. Camburn v. Novartis Pharms. Corp. and aligns the Second Circuit with United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., United States ex rel. Joshi v. St. Luke's Hosp., Inc., and United States ex rel. Clausen v. Lab'y Corp. of America, Inc.. The reasoning is functional: demanding every false claim would often be infeasible in systemic schemes, while a representative sample plus a particularized scheme description gives the defendant fair notice and prevents fishing expeditions.

2) Why Gallian still lost on direct FCA claims: she pleaded the scheme, but not the claims—and did not qualify for Chorches

Despite the new “representative sample” rule, Gallian did not benefit because she pleaded no examples of specific false claims submitted to the government for her direct theories. Her fallback was United States ex rel. Chorches for Bankr. Est. of Fabula v. American Med. Response, Inc., which permits softer pleading only if the relator plausibly alleges that claim-specific information is peculiarly within the defendant’s possession.

The court’s key move was to treat Gallian’s job responsibilities (billing/collections/posting payments) as undermining any inference that she lacked access to invoices or claim submissions. Chorches involved allegations that made access “virtually impossible” (employees barred from billing procedures and administrative buildings). Gallian offered no comparable, specific factual allegations showing that—through no fault or lack of diligence—she could not identify claim submissions.

In short, AmerisourceBergen reinforces a two-track direct-FCA pleading regime: (i) plead claim examples (representative sample is enough for complex schemes), or (ii) satisfy Chorches by pleading both a strong inference of submissions and peculiar inaccessibility of claim data. Gallian did neither.

3) Reverse FCA revival: overpayment retention, not affirmative misrepresentation, drove liability

The court revived the reverse FCA claim by treating the alleged misconduct as classic “retention and concealment of overpayments” rather than merely “fraudulent billing.” Key elements:

  • Obligation: The complaint anchored the repayment duty in 42 U.S.C. § 1320a-7k(d) (ACA overpayment rule), which expressly states that retaining an identified Medicare/Medicaid overpayment is an “obligation” for FCA purposes and requires report/return within 60 days of identification. The opinion also used the FCA’s definition of “obligation” in 31 U.S.C. § 3729(b)(3).
  • Identification: Gallian alleged internal audit confirmation and provided representative figures and records indicating overpayments were recognized, moved to “payer processing error,” and later swept into revenue.
  • Knowing concealment/avoidance: The alleged relabeling of government credits to evade auditing and the “pickup” practice to convert aged credits into revenue plausibly described concealment and improper avoidance/decrease of the duty to repay.

Importantly, the court reiterated from Miller v. United States ex rel. Miller that reverse FCA liability does not always require an affirmative misrepresentation. Thus, Gallian’s failure to plead specific invoices sent to the government—fatal to direct claims—was not dispositive for the reverse claim.

4) The “mirrored claim” bar remained, but Gallian cleared it

The panel applied United States ex rel. Foreman v. AECOM to reaffirm that a reverse claim cannot “turn on the same conduct underlying a traditional false claim.” It then distinguished this case: the reverse theory was not merely “we billed falsely and didn’t repay,” but “we internally hid overpayments and affirmatively converted them into revenue through a structured process,” which constitutes additional, distinct conduct aimed at avoiding repayment obligations.

The opinion also acknowledged the emerging inter-circuit tension signaled by United States ex rel. Kyer v. Thomas Health Sys., Inc., which questions Foreman’s mirrored-claim logic. But the Second Circuit did not reconsider Foreman; it narrowed the issue by characterizing Gallian’s reverse allegations as non-mirrored.

5) Rule 9(b) for reverse FCA claims: the court preserved uncertainty while assuming applicability

The panel candidly noted doctrinal uncertainty: reverse FCA theories based on “avoiding” or “decreasing” an obligation might not always sound in fraud, and therefore might not always trigger Rule 9(b) (as hinted in Miller v. United States ex rel. Miller). Nevertheless, the court assumed—without deciding—that Rule 9(b) applied and held Gallian met it by pleading: (i) representative overpayments, (ii) involved individuals, (iii) the concealment mechanism (re-coding to evade auditors and time-lapse revenue pickups), and (iv) the benefit (cash/revenue targets).

6) Denial of leave to amend: process and diligence mattered

Relying on Solomon v. Flipps Media, Inc., the court upheld denial of further amendment: Gallian had pre-motion notice of defects, amended in the course of proceedings, and still failed to address the specific missing element for direct claims (claim-level submissions or Chorches inaccessibility allegations), nor did she proffer concrete new facts that would cure the deficiency.

C. Impact

1) Direct FCA claims: Second Circuit formally embraces “representative sample” pleading

The opinion’s express adoption of representative-sample pleading is a significant clarification. It reduces uncertainty for relators alleging complex, systemic fraud: they need not plead every false claim, but they do need some concrete claim examples (unless Chorches applies). Defendants, correspondingly, gain a clearer argument for dismissal when a relator pleads only internal irregularities and inference, without any claim submissions or without a well-pleaded “peculiarly within defendant’s knowledge” showing.

2) Reverse FCA overpayment cases: stronger viability where internal processes show knowing conversion to revenue

The court’s reverse-FCA analysis underscores a practical enforcement avenue in healthcare and government-payor contexts: if overpayments are “identified” and retained past statutory deadlines, and internal practices are designed to obscure and monetize those credits, a reverse claim can survive even when direct billing fraud is not pleaded with invoice-level specificity.

3) Foreman’s mirrored-claim bar: still binding, but fact-sensitive

While the Second Circuit did not retreat from United States ex rel. Foreman v. AECOM, it signaled that reverse claims may proceed when the retention/avoidance conduct is meaningfully distinct from the act of submitting false claims—e.g., separate internal concealment workflows, reclassification to avoid audits, and deliberate revenue-recognition decisions.

4) Open questions preserved

  • Rule 9(b) scope for “avoid/decrease” reverse theories: The court left unresolved whether some reverse FCA theories are not inherently “fraud” and therefore might not require Rule 9(b).
  • Materiality for reverse FCA claims: The opinion flagged uncertainty (via Univ. Health Servs., Inc. v. United States ex. rel. Escobar and district authority) but suggested that, even if a materiality concept applies, substantial retained overpayments would satisfy it.

4. Complex Concepts Simplified

  • “Direct” FCA claims (31 U.S.C. § 3729(a)(1)(A)–(B)): These are the classic fraud-on-the-government claims—submitting (or causing submission of) false claims for government payment, or using false records/material statements tied to such claims.
  • “Reverse” FCA claims (31 U.S.C. § 3729(a)(1)(G)): These focus on money owed back to the government—e.g., knowingly keeping an overpayment and avoiding the duty to return it.
  • Rule 9(b): A heightened pleading rule for fraud. It requires enough detail to put the defendant on notice of the specific misconduct—often described as the “who, what, when, where, and how.”
  • “Representative sample” pleading: In large schemes, a relator can plead a handful of concrete examples of false claims plus a detailed description of the broader scheme, rather than listing every false claim.
  • Chorches “peculiarly within” exception: If the relator cannot access claim-level details and plausibly alleges the information is uniquely controlled by the defendant, the relator may proceed without attaching or identifying specific invoices—so long as the complaint strongly suggests false claims were submitted.
  • “Obligation” in reverse FCA: A legally established duty to pay the government. Here, the ACA’s Medicare/Medicaid overpayment statute (42 U.S.C. § 1320a-7k(d)) can create that duty once an overpayment is “identified.”
  • “Mirrored” reverse FCA claim: A reverse claim that is merely the direct claim restated as “and then they didn’t repay.” The Second Circuit generally bars that unless the reverse theory is anchored in additional, distinct avoidance/concealment conduct.

5. Conclusion

United States v. Amerisource Bergen Corp. delivers two primary takeaways. First, the Second Circuit formally adopts a “representative sample” approach for pleading direct FCA claims involving fraudulent misstatements: detailed scheme allegations plus concrete examples of false claims can open discovery on the broader scheme, but purely inferential pleadings without claim examples will fail absent a well-pleaded Chorches inaccessibility showing. Second, the decision strengthens the viability of reverse FCA overpayment-retention claims where a relator pleads an established repayment duty (such as under 42 U.S.C. § 1320a-7k(d)) and particularized concealment/avoidance conduct—especially internal reclassification and revenue-conversion practices—without needing to identify specific false invoices submitted to the government.