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False Claims Act Statistics, News & Analysis

False Claims Act Cert. Monitor: Solicitor General Presents Hurdle to Clearing the Public Disclosure Bar

Several months ago, we reported that the Supreme Court had called for the views of the Solicitor General (“CVSG”) on a relator’s cert. petition about the FCA public disclosure bar in U.S. ex rel. Advocates for Basic Legal Equality, Inc. v. U.S. Bank, N.A. (“ABLE”), No. 16-130. You can read our summary of the case in that blog post here. The Solicitor General has now weighed in.

In a welcome development for the defense bar, the Solicitor General has recommended that the relator’s petition be denied. The relator's petition alleged a split about whether a public disclosure of a broad, general category of alleged misconduct bars an FCA claim about a narrower, specific subtype of that misconduct, even where that specific misconduct was not specifically addressed in the public disclosure. The Sixth Circuit in ABLE had found that two distinct and specific public disclosures barred the relator from advancing FCA claims.

In the CVSG brief, the United States makes two principal arguments against granting certiorari. First, the government contends that the Sixth Circuit’s approach is not inconsistent with that of other circuits. The government’s brief explains that different verbal formulations of the same underlying standard do not necessarily equate to “materially different” “legal analyses” such as would be required to show a split of authority. Further, the United States takes the position that the different outcomes of cases cited in the petition reflect the fact that the public disclosure analysis is fact- and context-specific, rather than an application of different legal standards.

Second, the Solicitor General’s brief notes that the FCA prohibits the dismissal of complaints under the public disclosure bar over the government’s opposition. In the view of the United States, the purpose of the public disclosure bar is to protect the government, and so the fact that the statute effectively allows the government to decide whether a case may proceed is sufficient protection against worthy claims being barred—and thus the Court does not need to adopt an unduly narrow view of the public disclosure bar. Defendants will likely draw support from this argument in future disputes about the proper interpretation of the public disclosure bar and possibly the first-to-file bar. Under the Solicitor General’s rationale, courts should not be concerned about an overly broad reading of those bars in non-intervened qui tam cases because the United States can always salvage meritorious claims.

Also helpfully for defendants, the Solicitor General disagreed with the ABLE relator’s argument that the case should survive dismissal simply because neither of the two alleged public disclosures, standing alone, constituted the practices forming the basis of the relator’s allegations. The Solicitor General’s brief instead appears to agree that motions to dismiss under the public disclosure bar can rely on aggregating the disclosed facts from several different disclosures. This approach will likely also be useful to defendants in future FCA cases.

We will keep close tabs on ABLE to see whether the Court takes its fourth FCA case in as many years.

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Jeremy C. Marwell

Jeremy C. Marwell Partner