When Is Qui Tam False Claims Act Litigation “Based Upon” Prior Public Disclosure and Who Qualifies as “Original Source” of Information?

Two U.S. Courts of Appeal—the Seventh Circuit and the DC Circuit—have recently addressed related issues that arise when qui tam relators pursue False Claims Act (FCA)1 litigation following the public disclosure of facts related to the alleged false claims—a factor that may bar the claim. The Seventh Circuit concluded that a qui tam relator’s action was not “based upon” a public disclosure because the relator’s allegations could only be considered “substantially similar” to the public disclosure at an inappropriately high level of generality. The DC Circuit found that the allegations of a relator were “based upon” a public disclosure but that the relator’s suit was not barred because he qualified as an “original source.” These cases offer a more expansive view of actions that can be brought by qui tam relators following a public disclosure of the underlying allegation or information. This may result in more “copycat” qui tam suits and more difficulty for defense counsel in getting these suits dismissed.

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