The False Claims Act bars claims unless the disclosure is made by an original source. There are basically two ways someone can be an original source:
- The whistleblower provides the information to the government before there has been any public disclosure.
- The whistleblower gives the information to the government and the disclosed information is independent and material to any prior public disclosures. In short, the disclosure has a valuable new perspective to the knowledge the government already has.
Disclosures should be voluntary and not under the pressure of a subpoena, a statutory requirement, or a federal investigation. Disclosures must also be made to a federal branch of the government that has enforcement authority. FCA disclosures that are made to a state prosecutor or agency will not qualify as an original source for False Claims Act complaints.
The original source bar applies to both the right of the government to file the claim against defendants and the right of the whistleblower to claim a reward.
The Solis v. Millennium Pharm. Inc case
In this case, the Ninth Circuit Court of Appeals, on March 15, 2018, ruled on a whistleblower’s case against three drug makers. The alleged fraud was that the companies offered doctors kickbacks if they prescribed the drugs – in violation of the FCA and state law. There were also claims of off-label marketing. The lower District Court held that the whistleblower’s claims were barred by a prior public disclosure.
The Ninth Circuit sent the case back down to the lower District Court to re-evaluate the original source bar based on subsequent case law – giving the relator another opportunity to address whether he qualified as an original source.
The lower District Court had concluded that the relator did not have “a hand in the public disclosure” The Ninth Circuit remanded the case to the Lower Court because of an intervening decision in the case of United States ex rel. Hartpence v. Kinetic Concepts, Inc., That decision held that the “hand in the public disclosure” was not required. If the relator:
- Voluntarily provided the information before filing his FCA compliant to the Government
- Had “direct and independent knowledge” of the information on which his allegations are based
Those two criteria are enough in the Ninth Circuity to qualify as an original source. The remand was to determine if just those two tests were met.
Speak with a respected False Claims Act Lawyer today
Experience matters. For decades, the California False Claims Act lawyers have been fighting to for whistleblowers. We keep current with changes to the law. We’re not afraid to try to make new law when justice demands. For help with all aspects of your whistleblower claim, contact the law office of Stephen Danz & Associates. Call (877)789-9707 to make an appointment. Se habla espanol.