The Fourth Circuit recently held that a relator is prohibited from pursuing a False Claims Act (FCA) claim based on facts learned by relator’s counsel in a previous FCA suit. In United States ex rel. May v. Purdue Pharma L.P., the court reasoned that the FCA’s pre-2010 public disclosure bar precludes relators from relying on facts from a previous suit with different relators.

The original relator was a district sales manager at Purdue Pharma and brought a FCA suit against his employer in 2005. The Fourth Circuit dismissed his suit because of a release he signed when accepting a severance package from Purdue. Following the dismissal, his wife filed an identical claim (along with another former Purdue Pharma employee). Relators’ counsel was the same in both lawsuits.  

The Fourth Circuit held that the FCA’s pre-2010 public disclosure bar prohibits a relators’ attorney from bringing the same claims with a new relator. Unlike other circuits, the Fourth Circuit interprets the public disclosure bar to preclude suits only where the relator “actually derived” the qui tam suit from a public disclosure of the facts underlying the suit. The court reasoned that the realtors’ suit was still barred, because their claims are “based on facts counsel learned in the course of making the prior public disclosure” of Purdue’s allegedly fraudulent scheme.