New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Supreme Court Addresses Qui Tam Requirements

Download PDF

The False Claims Act (‛FCA“) authorizes civil actions to be brought by the United States Attorney General or private individuals for false or fraudulent claims for payment made to the United States Government. With respect to suits by private individuals (known as ‛qui tam relators“), the FCA contains the following express limitation:

"No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions … from the news media, unless the action is brought by the Attorney General or the person bringing the action is the original source of the information."

31 U.S.C. § 3730(e)(4)(A). An ‛original source“ is defined under the FCA as ‛an individual who has direct and independent knowledge of the information on which the allegations are based“ and, prior to bringing suit, has ‛voluntarily provided the information to the Government….“ 31 U.S.C. § 3730(e)(4)(B).

The Supreme Court recently interpreted this ‛public disclosure“ limitation in Rockwell Int’l Corp v. U.S., 127 S.Ct. 1397 (2007). Significant holdings in Rockwell include the following:

• The ‛public disclosure“ limitation is a restriction on the District Court’s subject matter jurisdiction (the Seventh Circuit had previously taken the contrary view in United States ex rel. Fallon v. Accudyne Corp, 97 F.3d 937, 940-41 (7th Cir. 1996), which was rejected in Rockwell).

• Because the limitation is jurisdictional, it must be analyzed and addressed even where the defendants have conceded the qui tam relator’s original source status.

• The requirement that the qui tam relator have ‛direct and independent knowledge of the information on which the allegations are based“ (31 U.S.C. § 3730(e)(4)(B)) means ‛direct and independent knowledge of the information on which [the relator’s own] allegations are based.“ Whether or not the relator is the source of the press accounts that trigger the public disclosure limitation is irrelevant. The lower courts had previously been divided on this issue.

• The test for whether the relator has ‛direct and independent knowledge of the information on which the allegations are based“ involves an analysis of the complaint or, if it is amended, the amended complaint or, if one is entered, the final pretrial order. As a litigation progresses and claims are refined, the qui tam relator must continue to be the original source of the information underlying the most current set of ‛allegations.“ This is true even where the Attorney General intervenes (notwithstanding the exception for actions ‛brought by the Attorney General“ under 31 U.S.C. § 3730(e)(4)(A)).

• The FCA does not allow ‛claim smuggling“ and does not provide ‛jurisdiction in gross.“ The qui tam relator must be the original source of information supporting each of his or her claims.

The upshot of Rockwell is that a putative qui tam relator must satisfy the requirements of 31 U.S.C. § 3730(e)(4)(A) and (B) at the time the complaint is filed, and must continue to do so as the litigation progresses. If the relator (or the Attorney General) files subsequent amendments to the complaint, or if issues are refined for trial such that the relator is no longer the source of the current ‛allegations“ in the action, this will have been done at the relator’s peril.

Doug Pepe

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

RICO: (1) Victim vs. Perpetrator Enterprises — (2) § 1962(b): Elements of a Violation — (3) Meaning of “Interest” and “Control” in § 1962(b) — (4) The Defendant in a § 1962(b) Action Need Not Be an Enterprise; The Victim Must Be An Enterprise — (5) Acquisition/Maintenance Injury Required (6) Aiding and Abetting Liability under RICO

Rule 11 Sanctions: Request for Bill of Particulars re Sanctions Proceeding Reviewed for Abuse of Discretion — Court’s Discretion Narrows As Severity of Sanction Increases OR When It Initiates the Sanction Proceeding Itself — Particularly Strict Abuse of Discretion Standard Applied — “Rule 11 Does Not License a District Court to Sanction Any Action by an Attorney or Party That It Disapproves of” (Good Quote) — Failure to Provide Identify Specific Pleading and Detail Specific, Objectionable Conduct within that Pleading Violates Due Process — Failure to Provide Notice That Most Severe Sanction May Be Imposed Violates Due Process — Failure to Provide Notice That “Scarlett Letter Sanction” (Mandatory Circulation of Sanctions Order) Or Other Sanction That Could Leave Indelible Imprint on Career Might Be Imposed Violates Due Process — Notice That Law Firm Might Be Sanctioned Insufficient to Afford Notice to Firm Lawyer and Managing Partner That He Might Be Sanctioned — Refusal to Impose Additional Sanction Until Impact of Other Imposed Penalties (Not Sanctions) Ascertained to See Whether Sanction Needed

Rule 37(c)(1) Sanctions: (1) Exclusion of Expert Testimony Reviewed for Abuse of Discretion Even When It Results in Summary Judgment — (2) Whether Physicians Must File 26(a)(2)(B) Report Depends on Whether They Formed Their Opinions for Litigation Or in the Course of Medical Treatment — (3) Party Seeking to Avoid Exclusion of Its Expert for Noncompliance with Rule 26 Bears Burden of Showing Harmlessness or Substantial Justification — (4) Expert Report Subject to Exclusion If It Is Conclusory and Does Not Meet the Level of Rigor Required by Rule 26(a)(2)(B)

RICO: The Statute Defines Enterprise Broadly, “But That Breadth Is Not Without Limit” (Good Quote) — Enterprise Inadequately Pled Where Plaintiffs Fail to Name the Common Purpose, Explain How the Relationships Among the Defendants Allowed Them to Advance That Purpose, Or Specify the Period of Time Sufficient to Achieve That Purpose — In a Particular Case, the Pattern of Racketeering May Be Sufficient to Infer the Existence of an Association-in-Fact Enterprise, But Pattern Does Not Necessarily Establish Enterprise — A RICO Conspiracy May Exist Regardless of Whether the Substantive RICO Violation Is Consummated, But the Substantive Violation Must Be Adequately Pled

RICO: (1) Claim Accrued When Plaintiff Suffered, and Was Aware of, Her Injury — Overt Retaliation in Her Employment As A Result of Reporting Another Employee’s Sexual Misconduct — Not When a Report Confirming that Misconduct Later Became Public; (2) Inhouse Lawyer’s Conclusion No Sexual Misconduct Occurred Is a Mere Expression of a Legal Conclusion, Not Deception Warranting SOL Reprieve Due to Equitable Tolling or Fraudulent Concealment — Plaintiff Exhibited Lack of Diligence in Failing to Consult Own Counsel or Challenge Inhouse Counsel’s Conclusion; (3) Causation: Plaintiff Must Prove Her Injuries Were Directly Caused by the Predicate Acts — (4) Concealment of Report Commissioned by Employer Directly Harmed Employer (by Exposing It to Liability) and Victims of Sexual Misconduct, and Only Indirectly Harmed Plaintiff Who Suffered Retaliation in Her Employment for Reporting the Misconduct

RICO: Without Injury to Business or Property, Injury Resulting from RICO Violation Is Not Actionable under RICO — Meaning of “Property” in § 1964(c) — Meaning of “Business” in § 1964(c) — Mere “Expectancy Interests” ≠ Business or Property — Loss of NCAA Eligibility = Loss of a Status, Not Loss of Property — Pecuniary Losses (Here, Attorney’s Fees) Flowing from a Non-Cognizable Injury Are Not Recoverably via RICO

RICO: Enterprise Not Sufficiently Distinct from Defendant Where Enterprise Allegedly Consisted of the Defendant Corporation, Corporate Employees, Their Counsel and “Friends”

FRAP 38 Sanctions Should Not Lightly Be Awarded on the Ground That an Incorrect Argument Was Frivolous — “An Appeal Can Be Weak, Indeed Almost Hopeless, Without Being Frivolous” (Good Quote) — There Must Be “No Legitimate Basis for Pursuing the Appeal” (Good Quote)

Severe Emotional Distress and Trauma ≠ RICO Injury — Parents’ Voluntary Financial Support of Adult Daughter Who Was Forced to Sign Over Her Annuity in Violation of RICO Not Proximately Caused by RICO Violation — Injury Is Derivative, Not Direct (Intimation of Different Result if Financial Support Required by Law) — RICO Injury Is Requirement for Statutory Standing (12(b)(6) Issue), Not Constitutional Standing (12(b)(1) Issue)

RICO — Neither Filing a Complaint Nor Issuing a Press Release Constitutes Wire Fraud — Litigation Privilege Is Absolute and Bars All Tort Claims Other Than Malicious Prosecution — Abuse of Process Claim Barred (California Law)

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice