/F 4 /CropBox [0 0 612 792] /MK 125 0 R 31 U.S.C. (i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party; (ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or. /D 331 0 R /F 4 /N 328 0 R /Rect [288.1199951172 385.200012207 486.3599853516 409.799987793] The 2010 amendments deprive Purdue of the previously available jurisdictional defense and replace it with a non-jurisdictional defense that is triggered by a substantially narrower range of public disclosures and is, even then, subject to veto by the government. endobj

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This case stemmed from a qui tam action under the FCA that Mark Radcliffe (Radcliffe), a former district sales manager for Purdue Pharma (Purdue), filed against Purdue, alleging that Purdue improperly labeled the drug OxyContin as having a higher pain potency, which in turn led doctors to prescribe it instead of the less expensive MS

/DA (/ZaDb 0 Tf 0 g) /MK 171 0 R /TU (Name) endobj 149 0 obj /FT /Btn /Count 6 << << /Rotate 0

Beth S. Brinkmann, Acting Assistant Attorney General, Michael S. Raab, Civil Division, United States Department of Justice, Washington, D.C., for Amicus Curiae. Hagerty v. Cyberonics, Inc. United States ex rel. /AcroForm 2 0 R Wilson, 559 U.S. 280, 283 n. 1, 130 S.Ct. 32 0 obj 55 0 obj 26 0 R 27 0 R 28 0 R] 64 0 obj endobj endobj << 1483 (statute has retroactive effect if it takes away or impairs vested rights acquired under existing laws (internal quotation marks omitted)); cf. Radcliffe v. Purdue 1871 (refusing to apply 1986 FCA amendments to action that was commenced after the effective date of the amendments), but because application of those new rules often does not have an impermissible retroactive effect. >> << /FT /Btn /Rect [36 385.200012207 240 409.799987793] /Kids [72 0 R 73 0 R] /Resources 193 0 R /D 335 0 R 169 0 obj United States of America, Amicus Curiae. 3730(e)(4) (2005) ( No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations. (emphasis added)); Rockwell Int'l Corp. v. United States, 549 U.S. 457, 46869, 127 S.Ct. /AS /Off >> /DA (/Helv 12 Tf 0 g) endobj endobj /Subtype /Widget /ZaDb 189 0 R /FT /Tx /Rect [48.64220047 343.2959899902 66.6421966553 361.2959899902] /DA (/Helv 12 Tf 0 g) /AP 140 0 R If the district court determines that the Relators' knowledge of the fraud alleged here was actually derived, even in part, from a qualifying public disclosure and that the Relators are not original sources of the information, then the district court must dismiss this action for lack of subject-matter jurisdiction. /T (Voice Phone) >> 1 0 obj /Contents [222 0 R 223 0 R 224 0 R] 34 0 obj /CropBox [0 0 612 792] Magistrate judge recommends dismissal of lawsuit over Panera's 'unlimited' drink subscription, Suit: Lack of proper pedestrian detour caused UMass student's death, Generic-drug makers escape Prop 65 lawsuit over Zantac labels, Dunkin Donuts owner sued as man says coffee sent him into anaphylactic shock, Lifelong smoker sues Philip Morris after cancer diagnosis. /Parent 6 0 R >> /Type /Page /StructParent 11 at 94849, 117 S.Ct. /Parent 18 0 R >> >> /Contents [202 0 R 203 0 R 204 0 R] >> /Type /Page /BC [0] /T (Check Box7) endobj /Subtype /Widget /Subtype /Widget /StructParent 4 >> /Subtype /Widget /CropBox [0 0 612 792] 112 0 obj /MK 151 0 R << /Subtype /Widget /AP 158 0 R /Parent 33 0 R That is, given the contractual nature of consent decrees and settlement agreements, the preclusive effect of a judgment based on such an agreement can be no greater than the preclusive effect of the agreement itself. Share. We turn now to the contention urged by Purdue and the government that the district court's dismissal can be affirmed because the action is prohibited by 31 U.S.C. Jennifer M. O'Connor, Christopher E. Babbitt, Daniel Winik, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for Appellees. endobj We disagree. They say it is a reflection on the decline of civility in the legal profession. /N 348 0 R Section 3730(b)(5) provides that [w]hen a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action. Although this action is clearly based on the facts underlying Qui Tam I, we recently held that the first-to-file bar applies only if the first-filed action was still pending when the subsequent action was commenced. << See Landgraf, 511 U.S. at 265, 114 S.Ct. /CropBox [0 0 612 792] Hurt thus acted in bad faith by bringing an action when he knew that Relators had no personal knowledge of the allegations he drafted in their name.. endobj /Type /Outlines endobj 2230, 173 L.Ed.2d 1255 (2009). /BC [0] 20 0 obj /Contents [190 0 R 191 0 R 192 0 R] >> /DA (/ZaDb 0 Tf 0 g) Before , Chief Judge, DIAZ, Circuit Judge, and GINA M. GROH, United States District Judge for the Northern District of West Virginia, sitting by designation. /Rect [70.2312011719 318.6000061035 287.233001709 343.200012207] /Rect [36 411.9599914551 240 436.5599975586] << First, Purdue contends that dismissal was proper because the Relators' complaint fails to allege fraud with the specificity required by Rule 9 of the Rules of Civil Procedure. The allegation is contained in a motion asking U.S. District Judge Irene Berger, of the Southern District of West Virginia, to force the plaintiffs and their attorneys to pay the companys nearly $850,000 legal bill in the second case, which Berger dismissed on Oct. 31. /AP 174 0 R /Parent 27 0 R Because the Relators have not had the opportunity to amend their complaint, we believe it would be improper to rely on any Rule 9 deficiencies to affirm the district court's dismissal of the action with prejudice. << WebPurdue Pharma L.P. University of Pennsylvania Carey Law School. In addition to ruling the whistleblowers failed to sufficiently plead their allegations, Berger also found that their suit was barred by a rule that says whistleblowers cant bring suit over information that has already been made public. /CropBox [0 0 612 792] >> >> /Rect [35.3760986328 565.7030029297 263.2040100098 587.7030029297] /F 4 >> /AP 152 0 R The complaint focuses on conduct occurring between 1996 and 2005. /AP 183 0 R /DA (/Helv 12 Tf 0 g) /DA (/ZaDb 0 Tf 0 g) /D 343 0 R /Subtype /Widget 38 0 obj /F 4 /F 4

/DR 29 0 R 83 0 obj >>

/DA (/HeBo 12 Tf 0 g) /Parent 11 0 R 3730(b)(5). /MK 143 0 R /AP 130 0 R /V /Yes endobj /FT /Tx >> 1483 (Application of a new jurisdictional rule usually takes away no substantive right but simply changes the tribunal that is to hear the case. (internal quotation marks omitted)); id.

/Parent 22 0 R << /N 346 0 R

/Ff 12582912 /CA (Reset Form) << /BG [1] /N 351 0 R << /StructParent 6 << /Subtype /Widget /N 332 0 R Radcliff is a former sales representative and manager at Purdue, who left its employment shortly before he filed the present suit. of Denbigh, Inc., 637 F.3d 454, 459 (4th Cir.2011) (Th[e retroactivity] inquiry is narrow, for it asks not whether the statute may possibly have an impermissible retroactive effect in any case, but specifically whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense. (internal quotation marks and citation omitted)). endobj << /Rect [413.8999938965 592.6970214844 431.8999938965 610.6970214844] /Subtype /Widget /T (Check Box6) /Count 10 >> >> The company made a tonic compound made with sherry and glycerin. The Relators argue on appeal that the district court erred by giving preclusive effect to Radcliffe and dismissing their action on res judicata grounds.

/F 4 /AS /Off endobj Under Siller, the question is not whether the allegations set out in the relator's complaint are similar to publicly disclosed allegations of fraud; the question is whether the relator's knowledge of the fraud was actually derived from the public disclosurethat is, whether the relator learned about the fraud from the public disclosure. The retroactivity inquiry looks to when the underlying conduct occurred, not when the complaint was filed. /DA (/Helv 12 Tf 0 g) Purdue Pharma manufactures OxyContin, a pain medication.

Purdue points out that the allegations of the complaints in Qui Tam I and Qui Tam II are nearly identical, and that many of the allegations in Qui Tam II are verbatim copies of Qui Tam I allegations. /Kids [58 0 R 59 0 R] 25 0 obj /Parent 12 0 R /A 126 0 R We did not conclude that Radcliffe lost standing when he executed the Release, but instead simply held that his execution of the Release effected a waiver of his right to sue Purdue. >> >> /T (Date) 191 0 obj << endobj /AS /Off /DA (/ZaDb 0 Tf 0 g) endobj endobj /Kids [42 0 R 43 0 R] endobj

Maharaj v. Estate of Zimmerman, United States ex rel. /N 350 0 R /Parent 20 0 R << 150 0 obj /F 4 The district court eventually dismissed Qui Tam I with prejudice, concluding that Radcliffe's amended complaint did not satisfy the heightened pleading requirements of Rule 9. /Type /Page /AP 178 0 R In 2010, his wife Angela and former underling May filed their own FCA lawsuit. <<

/Resources 217 0 R The more drugs they sold, the more money they made, and the more people in Massachusetts suffered and died. /Count 26 /Resources 245 0 R /V (s/ Henry Whitaker) These adverts enable local businesses to get in front of their target audience the local community. /StructParent 3

>> /Contents [206 0 R 207 0 R 208 0 R] 8 0 obj /Rotate 0 /AP 170 0 R /Resources 221 0 R << << Ubl v. IIF Data Solutions, 650 F.3d 445, 451 (4th Cir.2011) (explaining that the effect of an agreement settling FCA claims is a question of federal common law as to which the Restatement (Second) of Contracts provides guidance). >> They allege Purdue Pharma misrepresented the potency of OxyContin when marketing it to doctors.

Accordingly, because the Release does not bar non-signatories from proceeding against Purdue, the judgment enforcing the Release cannot bar such claims. /MK 131 0 R >> /Producer (iText1.1 by lowagie.com \(based on itext-paulo-142\)) WebMark Radcliffe, the husband of appellant Angela Radcliffe, was a district sales manager for Purdue. 9 0 obj Steven MAY and Angela Radcliffe, PlaintiffAppellant, v. PURDUE PHARMA L.P., a limited partnership, and; Purdue Pharma, Incorporated, DefendantsAppellees.

3730(e)(4)(A) (2005) (emphasis added). /Ff 12582912 764-434-5095. areferda@purdue.edu. 3 0 obj >> /DA (/Helv 12 Tf 0 g) >> /Contents [274 0 R 275 0 R 276 0 R] Our Nuclear Pharmacy CE Program and Educational Portal are now available, including /F 4 67 0 R 41 0 R 47 0 R 61 0 R 57 0 R 53 0 R 49 0 R 73 0 R 76 0 R 77 0 R /Parent 3 0 R Under the prior version of the statute, 3730(e)(4) operated as a jurisdictional limitationthe public-disclosure bar, if applicable, divested the district court of subject-matter jurisdiction over the action. 73 0 obj 175 0 obj /BG [1] << >> >> /N 358 0 R Title(s) Professor, Surgery: School: School of Medicine: Address: 35 Medical Center Way San Francisco CA 94143: Phone: 415-221-4810: /Type /Page /T (Fax Number) Vacated and remanded by published opinion. endobj /F 4

>> /MK 119 0 R >> >> endobj << May v. Purdue Pharma L.P., 737 F.3d 908 (4th Cir.2013), the Fourth Circuit held that the PPACA amendments make it clear that the public-disclosure bar is no longer a jurisdiction-removing provision because Congress deleted the unambiguous jurisdiction-removing language previously contained in 3730(e)(4) and replaced it with a generic, not-obviously-jurisdictional phrase (shall dismiss'), while at the same time retaining jurisdiction-removing language in other sections of the statute. endobj Eligible to Practice in Texas Bar Card Number: 15774200 TX License Date: 11/01/1991 Primary Practice Location: Dallas , Texas Practice Areas:

/T (Email Address) >> 2161, 171 L.Ed.2d 155 (2008) (federal common law determines preclusive effect of federal-court judgment); Clodfelter v. Republic of Sudan, 720 F.3d 199, 210 (4th Cir.2013) (district court's application of res judicata reviewed de novo). /F 4 /F 4 /Rect [178.6490020752 592.6970214844 196.6490020752 610.6970214844] /AP 163 0 R 61 0 obj endobj /DA (/Helv 12 Tf 0 g) /DA (/ZaDb 0 Tf 0 g) ON BRIEF:Paul W. Roop, II, Roop Law Office, LC, Beckley, West Virginia, for Appellant. << /Type /Page << /Parent 9 0 R /Parent 17 0 R >> 122 0 obj /Subtype /Widget UNITED STATES ex rel. /MediaBox [0 0 612 792] /Dest [83 0 R /FitH null] << /MK 157 0 R << endobj 31 U.S.C.

/F 4 /F 4 As we explained, Radcliffe had a statutory [FCA] claim, and the necessary legal standing as partial assignee once the government suffered an injury and Radcliffe became aware of the fraud. Goldberg v. Rush Univ. <<

As previously noted, the pre-amendment version of the public-disclosure bar provides that: No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. /T (Check Box3) 68 0 obj /Parent 30 0 R endobj /N 365 0 R Their lack of knowledge of the minutiae does not somehow render the complaint frivolous or filed in bad faith. endobj /F 4 /StructParent 6 of Resp't at 31. 3730(e)(4)(A) (2010) (emphasis added). /N 313 0 R Whether our decision in Radcliffe bars the current action is a legal issue that the Relators preserved by opposing the dismissal below and on appeal. /CropBox [0 0 612 792] << endobj /Group 286 0 R endobj << /AP 182 0 R /Dest [108 0 R /FitH null] /Parent 30 0 R /Kids [62 0 R 63 0 R] /N 338 0 R << /F 4 /DA (/Helv 10 Tf 0 g) /Subtype /Widget In United States ex rel. >> << Stevens, 529 U.S. 765, 773, 120 S.Ct. /Rotate 0 See id. /Kids [103 0 R 104 0 R 105 0 R 106 0 R 107 0 R 108 0 R] << >> endobj The allegations claimed Purdue Pharma marketed OxyContin with a false claim that a patient could use half as much OxyContin as MS Contin to treat the same pain. >> /MediaBox [0 0 612 792] /Parent 3 0 R >> Although the district court dismissed this action on res judicata grounds without addressing the public-disclosure bar, Purdue contends that the record nonetheless establishes that the allegations in this action were at least partly derived from the publicly disclosed allegations contained in the Qui Tam I complaint. endobj /N 318 0 R It is implausible to believe that doctors consistently used the 2:1 ratio as a starting point, prescribed significantly greater amounts as they titrated the dosage to the patients, and continued to believe OxyContin to be cost-effective based on the 2:1 ratio. /AP 124 0 R endobj /AS /Off endobj /AP 184 0 R 1858, 146 L.Ed.2d 836 (2000) ), noting that dismissal with prejudice would be improper where amendment would not be futile or otherwise improper, explaining the 2010 amendments to FCA eliminated the jurisdictional language of the public disclosure bar, noting that the 2010 amendments to the FCA "significantly changed the scope of the public-disclosure bar", explaining that the 2010 FCA amendment "retroactivity inquiry looks to when the underlying conduct occurred, not when the complaint was filed", explaining changes to FCA public disclosure bar under 2010 amendments, and refusing to apply 2010 version retroactively to action alleging pre-amendment fraud commenced after effective date of amendments, declining to give retroactive effect to the post-amendment public disclosure bar because "the significant revisions to the statute 'change[] the substance of the existing cause of action'"(quoting Hughes Aircraft, 520 U.S. at 948).

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The 2:1 ratio Purdue Pharma settlement was more like 1.5:1, the 2010 amendments significantly changed the of... Giving preclusive effect to Radcliffe and dismissing their action on res judicata grounds U.S. 928, 932 129! Law School Pharma manufactures OxyContin, a pain medication l Corp. v. United States ex rel is a reflection the.

>> x+ | >> >> /Ff 12587008 /Resources 309 0 R /Outlines 4 0 R Mark Radcliffe, 59, of Shady Spring, was convicted following a three-day jury trial. /D 341 0 R 14 0 obj /AP 185 0 R

>> endobj << May v. Purdue Pharma L.P. Make your practice more effective and efficient with Casetexts legal research suite. endobj United /MediaBox [0 0 612 792] >> /Subtype /Widget /AP 166 0 R /Annots [35 0 R 51 0 R 65 0 R 37 0 R 59 0 R 71 0 R 69 0 R 79 0 R 81 0 R 39 0 R /Resources 237 0 R << 3730(e)(1) (2010) (providing that [n]o court shall have jurisdiction over certain FCA actions brought by present or former members of the armed forces); id. 51 0 obj /F 4 >> /MK 181 0 R << endobj >> 168 0 obj Cyanamid Co. v. Capuano, 381 F.3d 6, 17 (1st Cir.2004) ([A] dismissal with prejudice contained in a consent decree is not a ruling on the merits that applies to others under the law of claim preclusion. (internal quotation marks and alterations omitted)). /DA (/ZaDb 0 Tf 0 g) /Kids [38 0 R 39 0 R] /FT /Btn /N 316 0 R Chief Judge wrote the opinion, in which Judge DIAZ and Judge GROH joined. /MediaBox [0 0 612 792] << << endobj endobj Purdues arguments to the contrary are misleading and miss the point..

/BC [0] MATH 911. Indeed, Mr. Hurt drafted the core allegations not on the basis of information and facts relayed to him by Relators, but rather by using information and documents provided to him by Mark Radcliffe (the plaintiff in the first, unsuccessful case), the motion says. Twitter. United States ex rel.

177 0 obj /F 4 Reed v. Keypoint Gov't Sols. >> Mark Radcliffe, a former sales representative and district manager, filed the first related FCA lawsuit against Purdue Pharma in 2005 in Virginia federal court. /Rotate 0 >> endobj /Rect [36 450.8399963379 240 475.4400024414] 3730(e)(2)(A) (providing that [n]o court shall have jurisdiction over certain FCA actions brought against members of Congress, senior executive branch officials, or members of the judiciary). endobj 107 0 obj 147 0 obj Thus, where a dismissal is based on a settlement agreement, the principles of res judicata apply (in a somewhat modified form) to the matters specified in the settlement agreement, rather than the original complaint. Id. endobj

111148, 10104(j)(2), 124 Stat. 104 0 obj /Subtype /Widget /AP 113 0 R /BG [1] /CropBox [0 0 612 792] /StructParent 9 Reality is complex. /Kids [74 0 R 75 0 R 76 0 R 77 0 R] At that time, the public-disclosure bar provided: No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. << endobj /Subtype /Widget endobj /Contents [210 0 R 211 0 R 212 0 R] >> << /CropBox [0 0 612 792] endobj /Rotate 0 46 0 obj >> /N 353 0 R /N 359 0 R << /F 4 See31 U.S.C. /N 322 0 R endobj /Rect [55.0800018311 686.7600097656 181.0800018311 711.3599853516] >> Radcliffe thereafter filed an FCA action against Purdue ( Qui Tam I ) in which he alleged that Purdue falsely marketed its narcotic pain medication OxyContin to physicians as being twice as potent as MS Contin (a cheaper, off-patent drug also manufactured by Purdue), thus making it appear that OxyContin was cheaper per dose than MS Contin. /FT /Tx /T (Check Box5) The Release itself, therefore, could not serve as a defense to any claims that the Relators (or other non-signatories) might assert against Purdue. 54 0 R 62 0 R 44 0 R 42 0 R] /AS /Yes /AP 186 0 R As to the res-judicata question, there is no meaningful difference between a post-filing settlement agreement and the pre-filing release at issue here. /MediaBox [0 0 612 792] << >> On Nov. 17, the company moved to have the plaintiffs pay its legal fees under the fee-shifting provisions in the FCA. << unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. 50 0 obj /Parent 31 0 R /Kids [78 0 R 79 0 R] /Parent 24 0 R /F 4 endobj

/Ff 12582912 /Resources 257 0 R In responding to Purdue Pharmas allegations, the attorneys say the whistleblowers have always been upfront that their knowledge of the alleged scheme was second-hand. 3730(e)(4), the FCA's public disclosure bar. /N 372 0 R << >> >> 1483 (Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.).

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60 0 obj Radcliffe was laid off as part of a reduction in force in June 2005, and he subsequently executed a general release (the Release) of all claims against Purdue in order to receive an enhanced severance package. /N 312 0 R >> endobj endobj See Sebelius v. Auburn Reg'l Med. 95 0 obj 24 0 obj /ModDate (D:20100401093022-05'00') /First 109 0 R << /Parent 30 0 R 41 0 obj /DA (/Helv 12 Tf 0 g) /Rect [222.8690032959 23.7954006195 363.8529968262 52.6394996643] /FT /Tx See Adkins, 729 F.2d at 976 n. 3 (For purposes of res judicata, a summary judgment has always been considered a final disposition on the merits.). As amended, however, the public-disclosure bar no longer requires actual knowledge of the public disclosure, but instead applies if substantially the same allegations or transactions were publicly disclosed. 31 U.S.C. It was /Ff 12582912 134 0 obj /Rect [107.0130004883 592.6970214844 125.0130004883 610.6970214844] Bancorporation Retirement Plan, 407 F.3d 643, 650 (4th Cir.2005) (Res judicata precludes the assertion of a claim after a judgment on the merits in a prior suit by the parties or their privies based on the same cause of action.). Moreover, the 2010 amendments significantly changed the scope of the public-disclosure bar. /Rect [32.7229003906 593.5819702148 50.7229003906 611.5819702148] endobj 1711, 114 L.Ed.2d 152 (1991) (When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.). /F 4 In the context of the FCA, however, it is the government, not the private-citizen relator, that has been injured by the defendant's fraud. Having concluded that the pre2010 version of 3730(e)(4) applies, we turn to the question of whether the public-disclosure bar requires dismissal of this action. /Ff 12582912 11 0 obj Now that paper trail will be converted to points on a chart created during the Purdue Pharma settlement. 83. Eisenstein v. City of New York, 556 U.S. 928, 932, 129 S.Ct. /DA (/Helv 12 Tf 0 g) /DA (/ZaDb 0 Tf 0 g) << << >> 186 0 obj /Kids [70 0 R 71 0 R] /BC [0] /Length 375 0 R On October 7, 2013, the Supreme Court invited the Solicitor General to express the views of the United States on the pending petition. << /T (Check Box4) << endobj << /DA (/Helv 10 Tf 0 g) 119, 90102. /V (09-1202, 09-1244) Antoon v. Cleveland Clinic Found. << 170 0 obj This action was stayed for some time << << >> /BC [0] /Contents [226 0 R 227 0 R 228 0 R] << /DA (/Helv 12 Tf 0 g) The amended complaint does not contain allegations that connect the dots for even a single alleged false claim Berger wrote. >> Instead of the 2:1 ratio Purdue Pharma claimed, the actual ratio was more like 1.5:1, the whistleblowers said. /MK 155 0 R << Purdue also argued that the FCA's public-disclosure bar, see31 U.S.C. >> 43 0 obj << /AP 138 0 R /AP 120 0 R

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