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The Legal Precedent for Contract by Conduct in the Public/Private Realm Doesn’t Support a Contract Here

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Joseph Petrillo

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Moda Health Plan, Inc. is one of dozens of insurers who sued when the Health and Human Services Department (HHS) failed to reimburse them for losses incurred as a result of participation in the healthcare marketplace set up by the Affordable Care Act (ACA). The Court of Federal Claims (COFC), and later the Federal Circuit, were tasked with determining whether there had been a contract by conduct set up between the Government and insurers. Despite success at the COFC, the Federal Circuit eventually denied Moda’s case. The case serves as a cautionary tale for companies considering entering into similar Government programs. 

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