The plea agreements included settlement of certain of the government's civil claims, but not of Radcliffe's qui tam suit. Partial knowledge or investigation on the part of the government is insufficient to remove a case from the purview of Green into the exception created by Hall. Id. Despite the labeling of the 2001 page, I find that this is not analogous to a traditional news outlet or periodical or even a trade journal because it involves information disseminated by one company about its own products, rather than a news organization or industry group disseminating information of general or specialized interest. Purdue Pharma L. P. et al, No. The parties have been provided with the sealed copy. The plaintiff-relator, Mark Radcliffe ("Radcliffe"), filed a qui tam suit in the United States District Court for the Western District of Virginia alleging that his former employer, Purdue Pharma, L.P. ("Purdue"), defrauded the government by marketing its pain-relief drug, OxyContin, as a cheaper alternative to the drug it replaced, MS Contin . [2] L E Corp. v. Days Inns of Am., Inc., 992 F.2d 55, 58 (4th Cir. To determine whether the circumstances of a case fall within the general rule articulated in Green or the exception in Hall, the critical issue is the completeness of the government's knowledge or the fullness of its investigation. In deciding a jurisdictional challenge, the court must determine the facts based on the evidence submitted. at 821. This case briefly mentions several sources "two previously filed lawsuits against defendant, as well as an Internet web page and a Pittsburgh Post-Gazette article" and summarily concludes that "these constitute public disclosures." The term "news media" includes scholarly, scientific, and technical periodicals, including trade journals, because, like newspapers, these sources disseminate information to the public in a periodic manner. at 963-64. Further, Radcliffe was cooperating with the government and was scheduled to be a grand jury witness. Mark Radcliffe, 59, of Shady Spring, was convicted following a three-day jury trial. 2005); see Springfield, 14 F.3d at 655. Radcliffe requests that if the Complaint is found insufficient on this ground, that he be granted leave to file an amended complaint. at 965-66. These terms included those related to the issues of relative potency and cost, as well as those that seem more related to the potential for abuse or the effects of withdrawal. Instead of the 2:1 ratio Purdue Pharma claimed, the actual ratio was more like 1.5:1, the whistleblowers said. On Nov. 17, the company moved to have the plaintiffs pay its legal fees under the fee-shifting provisions in the FCA. 56(e)). After the qui tam suit was initiated, the NRC revisited its prior investigation and reached the same conclusions. As to the defense that Radcliffe had released Purdue from the claims, I decided to treat the Motion to Dismiss as one for summary judgment in accord with Federal Rule of Civil Procedure 12(d). Months later, the former employee filed a qui tam complaint in federal court. This action was stayed for some time at the request of the federal government, which eventually declined to intervene, along with all of the thirteen state governments named in the Complaint. Bahrani, 183 F. Supp. United States ex rel. Bahrani v. Conagra, Inc., 183 F. Supp. 434. The FCA provides that there is no subject matter jurisdiction in a case where the claim is. United States ex rel. Id. Purdue also argues that in Hall itself the government had not completed its investigation prior to the execution of the release. As a result, such a rule would reward potential defendants who encourage settlement and would impair the public interest in having relators disclose information to the government. Prior public disclosures revealed the spin off, the company's problems with the unfunded pension liability, and eventually, the company's bankruptcy. On Nov. 17, Purdue Pharma alleged attorney Mark Hurt of Abingdon, Va., used information from a previous, unsuccessful whistleblower lawsuit against Purdue Pharma to file another through the plaintiffs wife and former coworker. While allegations of fraud were known to the Department of Justice, they had not been publically disclosed within the meaning of 3730(e)(4)(A). 1994). 2d 1272, 1275-78 (D. Colo. 2002); United States ex rel. Defs.' In mid-July 2005 the government reviewed and flagged numerous documents in the possession of four Purdue employees, [Redacted]. App. It further states that OxyContin is "indicated for the management of moderate to severe pain when a continuous, around-the-clock analgesic is needed for an extended period of time." Radcliffe was a district sales manager for Purdue, laid off as part of a reduction in force in June 2005. The Fourth Circuit follows a three-step approach in determining whether the public disclosure bar applies. The general release executed by Radcliffe does not bar this action. 458 (S.D.N.Y. The "John Femaledeer" emails indicate that Radcliffe did try to settle his claims with Purdue, but later retracted this offer after being told by an attorney that qui tam claims could not be settled without the government's consent. at 817. at 231-32. (T)here is no question that counsels pre-filing knowledge and investigations are imputed to his clients on the issue of whether there is a good-faith, non-frivolous basis for the allegations in a complaint. This action was stayed for some time at the request of the federal government, which eventually declined to intervene, along with all of the thirteen state governments named in the Complaint. Once the moving party has met its burden, "the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" To the extent that Radcliffe derived the allegations in his Complaint from either of these sources, these will be considered public disclosures in the news media. 2002); see also Gold v. Morrison-Knudsen Co., 68 F.3d 1475, 1476-77 (2d Cir. Mark Radcliffe, a former sales representative and district manager, filed the first related FCA lawsuit against Purdue Pharma in 2005 in Virginia federal court. Generally, this does not require that the disclosure be of the specific allegations brought by the relator, but instead the disclosure must put the government on notice of the likelihood of fraudulent activity. . Purdue argues that, under Rumery, the circumstances present here do not implicate the public interests articulated in Green, do not outweigh the general interest in settling litigation, and, thus, support enforcement of the release to bar this qui tam suit. Purdue argues that Radcliffe was a bad actor who waited to file his qui tam complaint and, prior to doing so, attempted to settle with Purdue in exchange for an investment in a company he was starting. Enforcing a release in this situation would deprive the public of a potential relator to enforce the FCA and recover monies for the government treasury. Radcliffe signed a general release of all claims against Purdue in exchange for an enhanced severance package. The plaintiff has the burden of showing that the court has subject matter jurisdiction. Id. See Fed.R.Civ.P. (Defs.' Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. Evidence presented in Bahrani demonstrated that, prior to executing a general release, the relator had two brief conversations with an FBI agent prior in which he made charges against his employer but offered no specifics regarding the alleged fraud. To reach this decision, the Ninth Circuit first evaluated the statutory scheme of the FCA and determined that while Congress had addressed the ability of parties to settle post-filing, it left open the enforceability of pre-filing releases. Certain sealed material has been redacted from the publicly released copy of this opinion. Id. On December 5, 2005, AUSA Mountcastle described the government's investigation as including "whether Purdue falsely marketed OxyContin as being twice as potent . As the release involved a statutorily-conferred federal right, the Ninth Circuit turned to federal common law to fill this "gap" in the statutory scheme. In his employment with Purdue between 1996 and 2005, Radcliffe was responsible for marketing OxyContin to individual physicians and became familiar with Purdue's marketing claims about OxyContin's relative cost and potency, including the claim that there is a 2:1 equianelgesic ratio between OxyContin and MS Contin. regarding the relative potency of oxycodone." Purdue Pharma Br. United States ex rel. 1187. Radcliffe v. Purdue Pharma L.P., 582 F. Supp. 5:2010cv01423 - Document 191 (S.D.W. Because a relator is only entitled to a portion of the proceeds from a successful qui tam suit, both the relator and the party accused of fraud could benefit financially by settling before the government learns of the allegations. The package insert recommends a starting conversion rate between OxyContin and MS Contin of 2:1, which can be reassessed based on a patient's reaction to the dosage. Purdue Pharma's attorneys suspected that Radcliffe was behind those threats. All reasonable inferences are "viewed in the light most favorable to the party opposing the motion." On September 27, 2005, Radcliffe filed his qui tam Complaint. The amended complaint does not contain allegations that connect the dots for even a single alleged false claim Berger wrote. Springfield Terminal Ry. and as a result, generally more expensive than the OxyContin that was described in [Purdue's] marketing pitch to the same physicians." While the issue of whether a general release is enforceable to bar a subsequent qui tam action has not been addressed by the Fourth Circuit, the framework established by the Ninth Circuit in United States ex rel Green v. Northrop Corp., 59 F.3d 953 (9th Cir. It has been noted that "[c]ourts have applied Rumery to a broad spectrum of pre- and post-filing releases of qui tam claims entered into without the United States' knowledge or consent." 3d ed. In September, the Department of Justice contacted Purdue's outside counsel with electronic search terms designed to capture documents [Redacted]. Radcliffe's allegations pertain to the issue of the relative cost and potency of OxyContin and MS Contin. 3730(e)(4)(A); see United States ex rel. Co. v. Quinn, 14 F.3d 645, 654-55 (D.C. Cir. 763 (E.D. For convenience, references herein to the "Complaint" shall include the most recent version. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. Regardless, the 1996 abstract was published in Clinical Pharmacology Therapeutics, a scientific journal headquartered in Alexandria, Virginia. This furthers the public interests in encouraging a potential relator to disclose his allegations to the government as quickly as possible, before the government has an opportunity to discover the alleged wrongdoing through other means. . Angela Radcliffe (the "Relators") commenced this FCA action against Purdue ("Qui Tam II") setting forth allegations nearly identical to those advanced by Mark Radcliffe in Qui Tam I. That agency investigated and concluded that it could not substantiate the allegations. The Ninth Circuit reversed, holding that a pre-filing release entered into without the government's knowledge or consent is not enforceable to bar a subsequent qui tam action because that would impair a substantial public policy. According to Assistant United States Attorney Rick A. Mountcastle, "one area of investigation concern[ed] whether Purdue falsely marketed OxyContin as being twice as potent as morphine and, accordingly, less expensive than MSContin." During this time the government was conducting a criminal investigation of Purdue's marketing of OxyContin, eventually resulting in guilty pleas in this court by a related company and three of Purdue's top executives. . Because the information contained in the disclosures was insufficient to imply fraud, it did not trigger the jurisdictional bar. 1995); State ex rel. This rule would also make the enforcability of such a release dependant on the government's intervention decision and may discourage some potential relators from initiating qui tam suits in the first place, leaving some allegations undisclosed. These include the public interest in having relators disclose inside information of alleged fraud to the government, in having relators supplement federal enforcement of the FCA by assisting the government in its investigation and prosecution or prosecuting the claim itself, and in deterring future fraud against the government. (c) and (f)(2)). 1995), and United States ex rel Hall v. Teledyne Wah Chang Albany, 104 F.3d 230 (9th Cir. & Training Trust Fund. While this would seem to be the case in Hall since the federal government had not only completed its investigation, but concluded that the allegations could not be substantiated, this does not mean that there are not other cases that the government may have investigated fully but determined that it would not prosecute on its own for a variety of reasons, such as the low amount of money involved compared to the cost of prosecution, the low likelihood of success, or the lack of government resources to pursue it. No list was kept of the documents reviewed or flagged, but according to the declaration of one of Purdue's outside counsel these included documents about the dispute over the relative potency of OxyContin and MS Contin. Kennedy v. Aventis Pharms., Inc., 512 F. Supp. 2007). Further limited discovery and briefing was allowed as to that issue. In summary, Purdue argues that the public disclosures in these scientific articles and in the OxyContin package insert amount to a disclosure of the fraudulent transactions alleged in Radcliffe's qui tam suit and put the government on notice of the potential fraud. These employees were indeed asked questions pertaining to the relative potency issue during their grand jury appearances on July 20, 2005. Mountcastle argued that the suit could hinder the investigation because while Purdue was aware of the investigation "no mention ha[d] been made that the 2:1 comparison of OxyContin and MSContin [was] one of the areas under investigation." the baton" and file the qui tam action against Purdue now before the court. Angela said her knowledge of the alleged fraud came from conversations with her husband, while May alleged some of his knowledge came from conversations with Mark and some came from observations during his own employment. of Health Human Servs., Clinical Practice Guideline: Acute Pain Management: Operative or Medical Procedures and Trauma, app. Specifically, in his sales representative training, he alleges that he was taught that there was a 2:1 equianalgesic ratio between OxyContin and MS Contin, a rival pain medication containing morphine, making OxyContin twice as potent and, as a result, cheaper per dose than MS Contin. formerly a sales representative for Purdue under Mark Radcliffe's supervision. Hall involved an employer who had been accused of fraud on the government by an employee. However, that is not the situation before me. Purdue Pharma L.P., No. at 962-63 (quoting Davies, 930 F.2d at 1399). Rabushka v. Crane Co., 40 F.3d 1509, 1512-14 (8th Cir. United States District Court, W.D. MARK RADCLIFFE: Defendant - Appellee: PURDUE PHARMA L.P. and PURDUE PHARMA, INCORPORATED: Amicus Curiae: 3729 et seq., against Purdue, alleging that the company was involved in a fraudulent scheme regarding the equianalgesic ratio of OxyContin. at 956-57. Finally, if the action was based on the public disclosure, was the relator an original source? Hurts co-counsel in the case is Beckley, W.Va., attorney Paul Roop. See United States v. Purdue Frederick Co., 495 F. Supp. 40 F.3d at 1510. However, he states that no details of the alleged misconduct were given and the attorney did not identify the name of his client. . With respect to the settlement attempts, it would seem counterintuitive to enforce a release to bar a subsequent qui tam suit, thus foreclosing the relator's ability to prosecute on behalf of the government, to punish that relator for trying to settle instead of filing suit in the first place. A separate order will be entered herewith. 1994) ("Textbook of Pain"). He alleged a fraudulent scheme whereby Purdue marketed 2d 766, 774 (W.D. On September 18 2014 Defendants hereinafter Purdue filed.20141009i18 The Ninth Circuit also relied on Davies v. Grossmont Union High School District, 930 F.2d 1390 (9th Cir. The allegation is contained in a motion asking U.S. District Judge Irene Berger, of the Southern District of West Virginia, to force the plaintiffs and their attorneys to pay the companys nearly $850,000 legal bill in the second case, which Berger dismissed on Oct. 31. If the patient did not receive the expected pain relief, the doctor might either prescribe something else or increase the dosage. Disclosures made in other public forums do not implicate the public disclosure bar. Likewise, the public interest in using qui tam suits to supplement federal enforcement of the FCA was not disturbed as the government had already investigated the allegations prior to the release. The plaintiff-relator, Mark Radcliffe ("Radcliffe"), filed a qui tam suit in the United States District Court for the West-ern District of Virginia alleging that his former employer, Purdue Pharma, L.P. ("Purdue"), defrauded the government . A doctor relying on the 2:1 ratio would initially prescribe half as much OxyContin as MS Contin, which, according to the relators, did cost less, Berger wrote. While the prior public disclosures included information that was true, they did not reveal the "true" state of facts regarding the executives' knowledge or intentions. See id. Several months later, as part of a general restructuring of its sales force, Purdue Pharma offered Radcliffe a severance package, which he accepted. Wilson, 528 F.3d at 299. Wilson, 528 F.3d at 300-01 (alternations and internal quotations omitted); see Eberhardt v. Integrated Design Constr., Inc., 167 F.3d 861, 870 (4th Cir. The government's investigation continued and on December 5, 2005, AUSA Mountcastle moved to stay Radcliffe's qui tam suit pending the government's ongoing investigation. Hurt thus acted in bad faith by bringing an action when he knew that Relators had no personal knowledge of the allegations he drafted in their name.. Enforcement of a release to bar a subsequent qui tam suit implicates several articulated public interests. Given the vast array and varying credibility of web pages on the Internet, I am not ready to conclude that anything posted online would automatically constitute a public disclosure within the meaning of 3730(e)(4)(A). On June 24, 2005, a conversation took place between Department of Justice attorney Barbara Wells and attorney Michael Scheininger, who represented several Purdue employees, about topics that would be discussed when those employees testified before the grand jury investigating Purdue. However, Radcliffe did file while the government was still investigating and when he could potentially still have been of use to the government. Purdue Pharma is seeking $849,660.55 from the whistleblowers and their attorneys. Curtis et al., Relative Potency of Controlled-Release Oxycodone and Controlled-Release Morphine in Postoperative Pain Model, 55 Eur. If not, then the court balances "all the factors that bear on whether `the public interest in enforcement of the agreement outweigh the policies furthered by non-enforcement.'" CV202-189, 2005 WL 3741538, at *5 (S.D. Ten years ago, Mark Radcliffe, a former district sales manager for Purdue Pharma, filed a qui tam action under the FCA against Purdue. Id. Nathan v. Takeda Pharmaceuticals N.A. 2010) case opinion from the U.S. Court of Appeals for the Fourth Circuit at 233. . But that is not sufficient to meet the rigorous standard of Rule 9(b). DeCarlo v. Kiewit/AFC Enters., Inc., 937 F. Supp. 425, 428 (1999). Purdue Pharma L.P., et al., Civil Action Nos. dismissing complaint because it did "not describe even a single instance in which a physician was influenced to prescribe [the drug] based on [the defendant's] misrepresentations, and where a claim was made by the pharmacist to the government". Its affiliation with a traditional news outlet or periodical or its identification as an online news outlet also identifies to the public that it is a place where news or periodical information on a particular topic can be found. It is implausible to believe that doctors consistently used the 2:1 ratio as a starting point, prescribed significantly greater amounts as they titrated the dosage to the patients, and continued to believe OxyContin to be cost-effective based on the 2:1 ratio. See United States ex rel. On June 23, 2005, the government requested that Purdue identify the author and source of different versions of a document [Redacted] already in the government's possession, [Redacted]. 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