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Media Alerts - United States ex rel. May & Radcliffe -- Fourth Circuit
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April 11, 2016
  United States ex rel. May & Radcliffe -- Fourth Circuit
Qui Tam Fo Fum: I Smell the Blood of Narrow Construction of the Public Disclosure Bar of the False Claims Act

Issue Presented: Whether a suit brought by one qui tam relator based on information an attorney learned during the prior representation of a different qui tam relator qualified as being "based upon" under the Public Disclosure Bar of the False Claims Act?

Brief Summary: The False Claims Act ("FCA") gives the government the ability to fine individuals and companies who file for government reimbursement using false or fraudulent information. The FCA also allows private litigants to bring an action on behalf of the government. Should such an action prevail, the government will pay the individual a bounty. The public disclosure bar prevents a court from hearing any actions brought by a qui tam relator that are based on publicly disclosed information.

The instant false claims case arises out of litigation that has been before the United States Court of Appeals for the Fourth Circuit before. Approximately ten years ago, Mark Radcliffe (not a litigant in the current case) brought a qui tam action alleging the company he formerly worked for (Purdue Pharmaceuticals) falsely inflated the efficacy of OxyContin to get government reimbursement for a more expensive version of the drug. The court eventually dismissed that case, holding that an agreement Mr. Radcliffe signed as part of his severance barred his qui tam claim. Following that dismissal, his wife, Angela Radcliffe, took on the case as the plaintiff and filed an ultimately fruitless petition for cert.

The current case, filed by both Angela Radcliffe and another former Purdue employee, Steven May, alleges essentially the same claims made in Mr. Radcliffe's original qui tam action. Mrs. Radcliffe and Mr. May also used the same attorney Mr. Radcliffe used in the original action. The District Court ruled that the Public Disclosure Bar ("Bar") of the FCA meant that the court did not have jurisdiction over this claim.

Mr. May and Mrs. Radcliffe claimed that the Bar did not apply because they never reviewed the actual filings in Mr. Radcliffe's case, but instead relied on information that their attorney learned during his representation of Mr. Radcliffe in the prior case. The Fourth Circuit held that though the litigants may not have reviewed the actual filings, using information their attorney developed in the previous action was sufficiently "based upon" publicly disclosed information so as to bar the claim on jurisdictional grounds under the FCA. While noting that most other circuits actually use a substantially related standard - barring any claim that is substantially the same as or related to a publicly disclosed action - the Fourth Circuit determined that the purpose of the bar was to discourage "piggybacking" on information that was generally known to the public.

Panel: Judges Traxler, Diaz, and Agee

Argument Date: 10/29/2015

Date of Issued Opinion: 01/29/2015

Docket Number: No. 14-2299

Decided: Affirmed by published opinion

Case Alert Author: Alex H. Kelly, Univ. of Maryland Carey School of Law

Counsel: Mark Tucker Hurt, THE LAW OFFICES OF MARK T. HURT, Abingdon, Virginia, for Appellant. Daniel Stephen Volchok, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for 2 Appellees. ON BRIEF: Paul W. Roop, II, ROOP LAW OFFICE, LC, Beckley, West Virginia, for Appellant. Howard M. Shapiro, Christopher E. Babbitt, Charles C. Speth, Ariel Hopkins, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellees

Author of Opinion: Judge Diaz

Case Alert Supervisor: Professor Renee Hutchins

    Posted By: Renee Hutchins @ 04/11/2016 11:20 AM     4th Circuit  

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