Recent Ninth Circuit En Banc Decision Makes It Easier For Relators To Be An Original Source And The First-To-File

On July 7, 2015, the United States Court of Appeals for the Ninth Circuit issued an en banc decision that potentially makes it easier for relators to prevail on pending False Claim Act qui tam suits and bring new actions in the Ninth Circuit. First, the court abandoned its twenty-three year-old requirement that a relator must have had a hand in the public disclosure of allegations of fraud to qualify as an original source under the original source exception to the public disclosure bar. Second, the court applied the first-to-file bar in a narrow manner, allowing a complaint based on allegations of fraud involving the same therapy services at issue in a prior complaint to go forward because it raised allegations of violations of a separate regulatory requirement. It is important to note that Congress amended the False Claims Act in 2010, changing the definition of original source, and the Ninth Circuit decision interpreted the definition of that phrase before the 2010