PharMerica Corporation v. United States, ex rel. Marc Silver

The Public Disclosure Bar (the “Bar”) of the False Claims Act (“FCA”), 31 U.S.C. § 3730(e)(4), provides that courts must dismiss an FCA case brought as a qui tam action by a relator who is not an original source of the information in his complaint “if substantially the same allegations or transactions as alleged in the action were publicly disclosed” in certain enumerated sources.1 The Bar functions as a gatekeeping device to prevent parasitic lawsuits based on previously disclosed information, while allowing true insiders to advance new claims. The Circuits have been unable to devise a uniform standard for ascertaining when the Bar applies, and in doing so have deviated from the plain language of the Bar, resulting in conflict and confusion among the Circuits. The questions presented are: 1. Whether a relator’s admission that he, in fact, derived his complaint from public disclosures triggers the Bar, requiring an analysis of whether such a relator is an original source of the information in his complaint, as every other Circuit to consider the issue has held 1 Prior to its amendment in 2010, the Bar provided that “[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions” in certain enumerated sources “unless the person bringing the action is an original source of the information.” 31 U.S.C. § 3730(e)(4) (2006).