Third Circuit Clarifies Public Disclosure Bar in False Claims
Act
In United States v. Omnicare, Inc., the Third Circuit
clarified the operation of the public disclosure bar in the False
Claims Act (FCA). The court held that publicly available
information "could not have reasonably or plausibly supported
an inference" of fraud. This information included government
reports of known fraud schemes and a 10-k financial disclosure by
the defendant company. The Third Circuit rejected application of
the bar because the relator used non-public information to
"make sense of publicly available information."
Relator Alleges Swapping
In this matter, the relator alleged that the defendant,
PharMerica, unlawfully discounted prices to supply prescriptions to
Medicare Part A patients in nursing homes. The government
reimburses nursing homes for these patients on a fixed per diem
rate that covers all services including prescriptions. The
discount allegedly induced nursing homes
