The case initially went to the Seventh Circuit Court of Appeals, which sided with SuperValu in 2021, ruling that the company’s pricing had an “objectively reasonable” explanation under the FCA. However, in 2023, the Supreme Court overturned that ruling, clarifying that FCA liability depends on whether a defendant actually believed their claims were false—not just whether they could later provide a plausible legal justification.
This decision makes it harder for defendants to escape FCA claims at early stages and is expected to lead to more trials in whistleblower cases.
What’s at Stake in the Trial?
The trial will focus on whether SuperValu knew—or chose to ignore—that its billing practices were fraudulent. The plaintiffs must prove SuperValu intentionally misled the government rather than simply misinterpreted regulations.
Judge Sue Myerscough has already ruled in summary judgment that SuperValu’s price-match rate was the true “usual and customary” price, leaving scienter and damages as the key trial issues.
Whistleblowers’ Case: Internal Emails Reveal Intent
Plaintiffs plan to use internal emails to show that SuperValu executives knew their obligations but deliberately concealed their practices:
- 2007 Email: A director warned that routine price-matching could impact U&C pricing and government claims.
- 2008 Email: A vice president told employees to ensure their lawyers could defend the price-match policy as not being the true U&C price.
- 2012 Instructions: After receiving a federal subpoena, a manager allegedly ordered employees to discard competitor price-matching lists and remove signs advertising the program—while secretly continuing to offer the discounts.
Whistleblowers also claim 6.3 million discounted transactions were intentionally excluded from government reports to maintain higher reimbursements.
SuperValu’s Defense: Price-Matching Was Legitimate
SuperValu argues that:
- Price-matching had been standard practice since 1987, and only 1.7% of prescriptions were matched between 2006 and 2016.
- State audits in Utah, Washington, and Illinois found no violations.
- Industry norms—including statements from CVS—suggested that price-matched rates were not considered U&C prices.
- Employees genuinely believed they were following the law, meaning there was no intent to defraud.
SuperValu also questions the credibility of whistleblower Michael Yarberry, alleging he has filed multiple FCA lawsuits against other companies and recruited co-plaintiff Schutte to work at SuperValu briefly before filing suit.
What’s Next?
With damages potentially exceeding $123 million, this trial is being closely watched as a test case for the Supreme Court’s revised FCA standard. A ruling in favor of the plaintiffs could encourage more whistleblower lawsuits and make FCA cases harder for companies to dismiss before trial.
