United States Ex Rel. Oliver v. Philip Morris USA Inc.
949 F. Supp. 2d 238
D.D.C.2013Background
- Oliver filed a qui tam action under the False Claims Act in 2008 alleging PMI violated the FCA by falsely certifying it offered the best price to the military under most-favored customer warranties.
- The United States declined to intervene in 2011, leaving Oliver to pursue the action on behalf of the Government.
- Oliver alleges PMI sold cigarettes to NEXCOM and AAFES at prices above those charged to affiliates and foreign purchasers, violating the warranties and creating false claims.
- PMI allegedly disclosed the pricing disparities through interoffice communications, and Oliver contends the disparities were used to support the FCA claims.
- The Court granted PMI’s 12(b)(1) motion, concluding the action is barred by the FCA’s public disclosure provision because the allegations/transactions are publicly disclosed.
- The Court found Oliver failed to qualify as an original source of the information and thus could not avoid the public disclosure bar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FCA public disclosure bar applies | Oliver argues the public disclosure bar should not apply because he is an original source. | PMI contends the allegations and transactions were publicly disclosed and Oliver is not an original source. | Public disclosure bar applies; case dismissed for lack of subject matter jurisdiction. |
| Whether the Interoffice Memorandum constitutes public disclosure | Oliver contends the memo was not publicly disclosed in a civil hearing or news media prior to filing. | PMI contends the memo was publicly disclosed via civil discovery, a public database, and online archives. | Interoffice Memorandum publicly disclosed; qualifies as public disclosure under FCA. |
| Whether Oliver is an original source | Oliver asserts he had direct and independent knowledge and provided information to the government pre-suit. | PMI argues Oliver lacks direct and independent knowledge of the specific MFN pricing issues and did not pre-disclose the relevant allegations. | Oliver failed to establish original-source status; thus, public disclosure bar bars jurisdiction. |
Key Cases Cited
- Schindler Elevator Corp. v. United States ex rel. Kirk, 131 S. Ct. 1885 (2011) (public disclosure bar construed broadly; FOIA-derived disclosures can trigger bar)
- U.S. ex rel. Green v. Serv. Contract Educ. and Training Trust Fund, 843 F. Supp. 2d 20 (D.D.C. 2012) (definition of 'public disclosure' includes online databases; translation to 'news media')
- U.S. ex rel. Quinn v. Planning Research Corp., Inc., 14 F.3d 653 (D.C. Cir. 1994) (public disclosure must reveal transactions/allegations could have alerted government)
- U.S. ex rel. Settlemire v. Dist. of Columbia, 198 F.3d 913 (D.C. Cir. 1999) (relator cannot rely on public domain allegations when central elements are disclosed)
- U.S. ex rel. Green v. Serv. Contract Educ. and Training Trust Fund, 843 F. Supp. 2d 20 (D.D.C. 2012) (original-source inquiry requires direct/independent knowledge and pre-suit disclosure)
- Rockwell Int’l Corp. v. U.S., 549 U.S. 457 (2007) (defines 'direct' and 'independent' knowledge for original-source analysis)
- Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280 (2010) (retroactivity of FCA amendments; public disclosure scope)