The False Claims Act contains a “public disclosure bar,” which prevents a federal court from hearing a whistleblower action if the whistleblower’s allegations of fraud have already been publicly disclosed. See US ex rel Mateski v. Raytheon Co., 816 F.3d 565, 569 (9th Cir. 2016). The public disclosure bar does not apply, however, if the whistleblower qualifies as a “original source”. The purpose of the public disclosure bar is to encourage whistleblowers to bring suits where they can offer genuinely valuable information, yet at the same time discourage lawsuits where the plaintiff has no significant information of his own to contribute. Id. at 570.

The public disclosure bar is triggered if the following three criteria apply: (1) the disclosed information occurred through one of the channels specified in the statute; (2) the disclosure was public; and (3) the whistleblower’s lawsuit is based upon the allegations or transactions publicly disclosed. Id citing Malhorta v. Steinberg, 770 F.3d 853, 858 (9th Cir. 2014).

The issue for the court to decide in the Mateski was whether the whistleblower’s lawsuit was “based upon” allegations or transactions publicly disclosed. If the lawsuit was based upon publicly disclosed information, the public disclosure bar applied and the lawsuit would be dismissed by the court.

In the Mateski, the district court dismissed the whistleblower action and the whistleblower appealed. On appeal, the Ninth Circuit reversed the district court and instead found that the whistleblower alleged fraud in his complaint that is different in kind and degree from the previously disclosed information. The court found that although prior public reports had described the general problems with Raytheon’s work on the Visible Infared Imaging Radiometer Suite Sensor, or “VIIRS”, none of the prior public reports “provided specific examples or the level of detail offered by the Mateski.” Id. at 578.

The circuit court in the Mateski gave examples of allegations contained within the whistleblower’s “lengthy complaint” that demonstrated his allegations “are vastly more precise than the prior public reports about the problems with VIIRS.” Id. Examples of the detailed information provided by the whistleblower included allegations of numerous false waivers of VIIRS specifications and requirements. The whistleblower also alleged the filing of false and inappropriate sign-offs and certifications. Id. at 578.

Mateski considered prior case law finding that for a whistleblower’s allegations to be based on prior public disclosure, the publicly disclosed facts do not have to be identical, but instead only substantially similar to the whistleblower’s allegations. Id. at 573. Mateski looks at how courts go about determining whether the allegations in the complaint are substantially similar to the previously publicly disclosed information. When there is virtually no difference in the fraud alleged in the complaint and the publicly disclosed information, the allegations are substantially similar.

One way courts can determine whether allegations are factually similar is to ask whether the government was on notice to investigate the fraud before the whistleblower filed his complaint. As Mateski explains, this is “another way of thinking about substantial similarity.” Id. at 574. Adopting the reasoning of the Seventh Circuit, Mateski looks at the issue of substantial similarity using a “lower level of generality”. Id at 575.

When viewing a whistleblower’s claim and publicly disclosed information at a high level of generality, it becomes easy to lump the two together and dismiss the false claim action. Mateski rejects this approach, and instead adopts the more granular, lower level of generality. The court reasoned that this approach (lower level generality) strikes a good balance between “adequate incentives for whistleblowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute on their own.” Id.

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Jason Cornell is an attorney who represents whistleblowers with the law firm Clark Fountain LaVista Prather Keen & Littky-Rubin. Clark Fountain represents plaintiffs in various matters throughout the United States. If you have questions regarding the issues addressed in this or other posts, you can reach Jason at jcornell@clarkfountain.com.