The two cases Mark and Kian discuss in this episode each raise a tricky but important question.

The first, Green Plains Trade Group, LLC v. Archer Daniels Midland Co., addresses how federal courts should discern the content of state law. The landmark Supreme Court case Erie Railroad v. Tompkins says federal courts should try to predict what the state supreme court would do. And in implementing this rule, the Seventh Circuit (like other federal appellate courts) has cautioned district courts from accepting novel state-law theories. In Green Plains, the Seventh Circuit clarified when this “maxim” against novel theories applies—only where “the evidence concerning the content of state law is in equipoise.”

The second case, U.S. ex rel Health v. Wisconsin Bell, concerns what counts as a “claim” under the False Claims Act. And the Seventh Circuit held—in an acknowledged split from the Fifth Circuit—that an application for funds can be a “claim” even if the funds at issue do not come from the U.S. Treasury. Instead, the Seventh Circuit concluded that “the federal government can be deemed to ‘provide’ money for purposes of the False Claims Act by maintaining an active role in its collection and distribution.”