Haven't I Seen These Allegations Before? FCA's Public Disclosure Bar Forecloses Suit

In a recent decision, U.S. ex rel. Piacentile v. U.S. Oncology, Inc., No. 22-18 (2d Cir. Mar. 28, 2023), the Second Circuit held that the FCA's public disclosure bar required dismissal because the kickback scheme relators alleged had already been revealed in prior suits and relators were not "original sources." Along with another recent Second Circuit decision, these decisions show that the Second Circuit will continue to apply a muscular public disclosure bar to dismiss "parasitic" suits.

In their qui tam suit, relators Dr. Joseph Piacentile and Kevin Kilcoyne alleged that defendants U.S. Oncology, Inc. and Amgen were involved in a kickback scheme that led to U.S. Oncology's submitting claims in violation of the FCA. The district court dismissed the suit because it concluded that it lacked subject matter jurisdiction under the FCA's pre-2010 public disclosure bar and, in the alternative, because relators failed to satisfy FRCP 9(b)'s heightened pleading