In an en banc decision filed July 7, 2015, the Ninth Circuit reversed the district court’s original dismissal of consolidated qui tam suits brought by whistleblowers, alleging that their former employer, Kinetic Concepts, Inc., had fraudulently claimed reimbursements from Medicare. See US ex rel. Hartpence v. Kinetic Concepts, Inc. (12-55396) and US ex rel. Godecke v. Kinetic Concepts, Inc. (12-56117).
The Court held that there are now only two requirements in order for a whistleblower to be an “original source” who may recover under the False Claims Act (FCA): (1) before filing the action, the whistleblower must voluntarily inform the government of the facts which underlie the allegations of the complaint; and (2) the whistleblower must have direct and independent knowledge of the allegations underlying the complaint.
The Ninth Circuit’s en banc decision in Kinetic Concepts overturned the Ninth Circuit’s earlier precedent on this issue, Wang ex rel. United States v. FMC Corp., 975 F.2d 1412, 1418 (9th Cir. 1992), which additionally required a whistleblower to have had a “hand in the public disclosure” of the fraud in order to be considered a qualified original source.
According to the July Kinetic Concepts ruling, it no longer matters whether a whistleblower played any role in the public disclosure of their claims, if they meet the two-part test defined above.
The decision announced in Kinetic Concepts is significant as Wang’s three-part test had been the law in the Ninth Circuit for the past 23 years. The decision loosens the Original Source requirement so that a whistleblower is no longer required to have played any role in making the disclosure public. The removal of this requirement makes it easier for whistleblowers to establish original source status in the Ninth Circuit, thereby opening the door to even more FCA actions.
This blog is provided for general informational purposes only. Because Groff Murphy is a law firm and the authors of this blog’s content are attorneys, the information provided is often legal in nature. An attorney-client relationship is not established by reading this content. By using the blog, you agree that the information on this blog does not constitute legal or other professional advice, and no attorney-client or other relationship is created between you and the author(s), or Groff Murphy or any of its partners, associates or of-counsel. The information is not guaranteed to be correct, complete or up-to-date as information is subject to change and may not be reflected in prior content. The opinions expressed within the blog are the opinions of the author and may not reflect the opinions of Groff Murphy or any other individual attorney at Groff Murphy.
Outcomes: Every legal matter is different, case outcomes are affected by many different variables. No attorney and/or author can guarantee a result in any particular case nor can results be guaranteed based on prior outcomes.
Warning: in_array() expects parameter 2 to be array, boolean given in /home/primewat/public_html/wp-content/plugins/ultimatum-social-share/includes/front.utsocialshare.php on line 92