46 F.4th 991
9th Cir.2022Background
- Relator Zachary Silbersher (a patent attorney) sued Allergan and Adamas under the False Claims Act, alleging they procured fraudulent patents on Namenda XR and Namzaric to delay generic entry and cause Medicare to pay inflated prices (~$1.5 billion for 2014–15).
- Key factual materials underlying the complaint were publicly available (PTO and other government websites; patent prosecution filings). The DOJ and most states declined to intervene; California filed a statement of interest.
- Defendants moved to dismiss under the FCA’s public disclosure bar, which bars qui tam suits when ‘‘substantially the same allegations or transactions’’ were publicly disclosed in certain channels. The district court denied the motion.
- Defendants appealed; the Ninth Circuit reviewed de novo and analyzed the 2010-revised public disclosure bar.
- The panel held that ex parte patent prosecutions before the PTO qualify as an "other Federal . . . hearing" under 31 U.S.C. § 3730(e)(4)(A)(ii), so the public disclosure bar was triggered.
- The court reversed and remanded for further proceedings on whether Silbersher is an "original source" (which would preserve his suit); the panel did not decide original-source status or other challenges to the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ex parte patent prosecutions are an "other Federal . . . hearing" under §3730(e)(4)(A)(ii) | Patent prosecutions where government is not a party should be excluded from the public-disclosure bar | PTO patent prosecutions are Federal administrative hearings and fall within "other Federal . . . hearing" | Court held they qualify as an "other Federal . . . hearing," triggering the public disclosure bar |
| Whether the information underlying the complaint was publicly disclosed / "substantially the same" | Silbersher argued his allegations were not "substantially the same" as public disclosures (but waived below) | Material underlying the complaint was publicly disclosed in PTO and agency filings | Court treated the underlying information as publicly disclosed; Silbersher waived the substantial-sameness argument, so court did not resolve that issue on the merits |
| Whether relator may proceed as an "original source" despite public disclosure | Silbersher contends he is an original source and thus not barred | Defendants contend public disclosure bars the suit unless relator proves original-source status | Court did not decide; remanded to district court to determine original-source status |
Key Cases Cited
- Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401 (2011) (interpreting scope of the FCA public disclosure bar)
- United States ex rel. Solis v. Millennium Pharms., Inc., 885 F.3d 623 (9th Cir. 2018) (articulating elements to trigger the public disclosure bar)
- A-1 Ambulance Serv., Inc. v. California, 202 F.3d 1238 (9th Cir. 2000) (public agency proceedings qualify as administrative hearings under the public disclosure bar)
- United States ex rel. Mateski v. Raytheon Co., 816 F.3d 565 (9th Cir. 2016) (discussing original-source doctrine and public disclosure)
- United States ex rel. Bennett v. Biotronik, Inc., 876 F.3d 1011 (9th Cir. 2017) (noting limits on qui tam suits and statutory bars)
- Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280 (2010) (statutory interpretation principles for the FCA)
- Yates v. United States, 574 U.S. 528 (2015) (applying noscitur a sociis canon)