The Qui Tam process is designed to encourage and Whistleblowers or “relaters” to disclose illegal billing arrangements by paying a percentage of any recovery to the relaters for providing “confidential” information. The theory is that these individuals will be providing information with would not otherwise become available. A corollary to this theory is that relaters cannot use “publically available information” as the foundation for a whistleblower or qui tam complaint.
However, since all corollaries have further clarifications, the courts have also concluded the existence of generally available public information will not preclude whistleblower litigation when the relators are providing more specific and more confidential information. In other words, simply because some general description of a potential problem exists, that does not mean that relators provide specific examples of those types of cases will be precluded from litigation.
In United States ex rel. Jamison v. McKesson Corp., the Fifth Circuit does a good job of balancing this tension. Mr. Jamison alleged illegal DME joint venture billing arrangements. The defendants asserted the public disclosure bar, claiming that the types of illegal billing arrangements complained of had been publically disclosed by a variety of OIG reports and descriptions. The Court basically concluded as follows:
· The availability of these generic descriptions of potential problems, no matter how pervasive the conduct might be, is not public disclosure of a specific illegal arrangement.
· Even though this public information did not constitute a public disclosure bar, the relator’s allegations did not qualify him as a relator because his complaint simply restated the publicly available information and named every possible DME supplier as defendant without any specific information regarding most, if not all, of those defendants.
The Circuit Court noted:
“Were we to rule otherwise, a qui tam relator could arbitrarily select a large group of defendants in any industry in which public disclosure have revealed significant fraud, in hopes that his allegations would prove true for at least a few defendants. We do not countenance such related lotteries, which are quintessentially parasitic suits by opportunistic late-comers who had nothing to do with the exposure of fraud and which the public disclosure bar is designed to prevent.”