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<<

Ten years ago, Mark Radcliffea former district sales manager for Purdue Pharma (Purdue)filed a qui tam action under the FCA against Purdue. The Release itself, therefore, could not serve as a defense to any claims that the Relators (or other non-signatories) might assert against Purdue. /DA (/ZaDb 0 Tf 0 g)

/Rect [35.3760986328 83.7035980225 277.3540039062 187.0690002441] << 116 0 obj It was dismissed for failure to plead fraud with sufficient particularity. /Type /Page endobj >>

/AP 185 0 R /V (Jennifer M. O'Connor\rWilmerHale\r1875 Pennsylvania Ave. N.W.\rWashington, D.C. 20006)

See Graham Cnty. Facebook. /Contents [194 0 R 195 0 R 196 0 R] /DA (/ZaDb 0 Tf 0 g) /DA (/Helv 12 Tf 0 g)

endobj 35 0 obj

/Subtype /Widget In 2010, his wife Angela and former underling May filed their own FCA lawsuit. /AP 115 0 R /N 364 0 R The Newsletter Bringing the Legal System to Light. /Length 374 0 R /Type /Page endobj Although the district court dismissed this action on res judicata grounds without addressing the public-disclosure bar, Purdue contends that the record nonetheless establishes that the allegations in this action were at least partly derived from the publicly disclosed allegations contained in the Qui Tam I complaint. /Kids [44 0 R 45 0 R] United States ex rel.

158 0 obj /Parent 14 0 R /Parent 16 0 R Indeed, we made this very point in Radcliffe when we noted that the Release did not prohibit the government or another relator from pursuing similar claims against Purdue. Radcliffe, 600 F.3d at 329 n. 8. 2230, 173 L.Ed.2d 1255 (2009). endobj >> 170 0 obj /Parent 9 0 R /FT /Tx /F 4 /StructParent 5 /T (Case Number) /Parent 28 0 R Our dismissal in Radcliffe may well have been a dismissal on the merits under Rule 41. Twitter. /DA (/Helv 12 Tf 0 g) 187 0 obj

(1986 FCA amendment had retroactive effect because it eliminate[d] a defense to a qui tam suit and therefore change[d] the substance of the existing cause of action for qui tam defendants (internal quotation marks and alteration omitted)); id. endobj 55 0 obj Henry C. Whitaker, United States Department of Justice, Washington, D.C., for Amicus Curiae.

/N 357 0 R Cyanamid Co. v. Capuano, 381 F.3d 6, 17 (1st Cir.2004) ([A] dismissal with prejudice contained in a consent decree is not a ruling on the merits that applies to others under the law of claim preclusion. (internal quotation marks and alterations omitted)). Accordingly, because the 2010 amendments have retroactive effect and the legislation is silent as to retroactivity, the 2010 version of the public-disclosure bar cannot be applied in this case, notwithstanding the fact that the complaint was filed after the effective date of the amendments.

Generally speaking, whether res judicata precludes a subsequent action turns on the existence of three factors: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits. Clodfelter, 720 F.3d at 210 (4th Cir.2013) (internal quotation marks omitted).

/AP 178 0 R

Sys., Inc., 613 F.3d 1186, 1188 n. 3 (8th Cir.2010). /F 4 /D 319 0 R This appeal followed. /CropBox [0 0 612 792] 3730(e)(2)(A) (providing that [n]o court shall have jurisdiction over certain FCA actions brought against members of Congress, senior executive branch officials, or members of the judiciary). /CropBox [0 0 612 792] /N 370 0 R By the same token, the amendments expand the number of private plaintiffs entitled to bring qui tam actions by including plaintiffs who learn of the underlying fraud through disclosures in state proceedings or reports. endobj 159 0 obj >> >> As we explained, Radcliffe had a statutory [FCA] claim, and the necessary legal standing as partial assignee once the government suffered an injury and Radcliffe became aware of the fraud. /Type /Page Its battle that Isaacs, a former mortgage fraud expert at Citigroup, has been fighting since she and her son Ryan became dependent on OxyContin, Purdue /DA (/Helv 12 Tf 0 g) endobj /Annots [35 0 R 51 0 R 65 0 R 37 0 R 59 0 R 71 0 R 69 0 R 79 0 R 81 0 R 39 0 R << 56 0 obj /Parent 8 0 R They alleged these statements were made to doctors whose patients obtained prescriptions paid for by the government, creating a claim under the False Claims Act. /Subtype /Widget >> endobj Yo^NiCOb*N 8c*(gx6OpkUJ$H7ms[ /Parent 7 0 R /Subtype /Widget /Rotate 0

/Contents [274 0 R 275 0 R 276 0 R] >> /Parent 30 0 R >> /StructParent 5 /CropBox [0 0 612 792] /DA (/Helv 12 Tf 0 g) holding that 2010 amendments to public-disclosure bar now render the provision nonjurisdictional, holding that the PPACA amendments make it clear that the public-disclosure bar is no longer a jurisdiction-removing provision, recognizing "that the 2010 FCA amendments may not be applied to cases arising before the effective date of the amendments", explaining that because the Fourth Circuit had not used the substantially-the-same standard, the 2010 amendment "changed the required connection between the plaintiff's claims and the qualifying public disclosure" in that circuit, noting that the qui tam provisions of the FCA statutorily vests private citizens with standing (citing Vt. Agency of Natural Res.

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155 0 obj /Title (36 Appearance form - 07/01/2009 \(2\), p.26) /Parent 3 0 R >> The district court on remand is free to consider Purdue's Rule 9 argument in the first instance. /FT /Btn /N 333 0 R The preclusive effect of a judgment issued by a federal court is a legal question governed by federal common law and subject to de novo review. /MediaBox [0 0 612 792]

>> >> 152 0 obj /D 325 0 R /Type /Page WebMark Radcliffe, the husband of appellant Angela Radcliffe, was a district sales manager for Purdue. 121 0 obj /Group 298 0 R /TU (Reset Form) /Parent 10 0 R /Rotate 0 Mistick PBT v. Housing Auth., 186 F.3d 376, 386 (3d Cir.1999) (collecting cases), this circuit has interpreted the clause as barring only those actions where the relator's knowledge of the fraud alleged was actually derived from the public disclosure itself. /MK 137 0 R Brown v. Angelone, 150 F.3d 370, 373 (4th Cir.1998) (When application of a new limitation period would wholly eliminate claims for substantive rights or remedial actions considered timely under the old law, the application is impermissibly retroactive. 125 0 obj WebUpdated Nuclear Pharmacy Programs | Purdue University Nuclear Pharmacy Programs.

26 0 R 27 0 R 28 0 R] /AP 158 0 R 166 0 obj >> >> /DA (/Helv 10 Tf 0 g) endobj endobj /DA (/Helv 12 Tf 0 g) endobj of Resp't at 31. The two are represented by the same two attorneys who represented Mark Hurt and Roop. endobj endobj

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The allegations claimed Purdue Pharma marketed OxyContin with a false claim that a patient could use half as much OxyContin as MS Contin to treat the same pain. endobj /Subtype /Widget << /Parent 18 0 R

Radcliffe v. Purdue Pharma L.P., 600 F.3d 319 (4th Cir.2010), the district court dismissed the action on res judicata grounds.

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/FT /Tx 91 0 obj << Section 3730(b)(5) provides that [w]hen a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action. Although this action is clearly based on the facts underlying Qui Tam I, we recently held that the first-to-file bar applies only if the first-filed action was still pending when the subsequent action was commenced. endobj << /Kids [34 0 R 35 0 R] endobj /StructParent 3 >> >> /Next 310 0 R /Parent 23 0 R

#nB{C!-P`pCauQRF:9'Y[dLI9&2u .LnA%/[~>K`x%k?n1u&Z_@|PO\4M~dG>~qU@_w\Y?_. Under the prior version of the statute, disclosures in federal and state trials and hearings qualify as public disclosures, see, e.g., McElmurray v. Consol. endobj May v. Purdue Pharma L.P. Make your practice more effective and efficient with Casetexts legal research suite. /Resources 265 0 R << Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. endobj >>

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/AS /Off /Rect [36 385.200012207 240 409.799987793] endobj << The Release executed by Mark Radcliffe in Qui Tam I was personal to him and addressed only his rights and the claims that he might assert against Purdue. endobj >> As to the res-judicata question, there is no meaningful difference between a post-filing settlement agreement and the pre-filing release at issue here. See Adkins, 729 F.2d at 976 n. 3 (For purposes of res judicata, a summary judgment has always been considered a final disposition on the merits.). /DA (/ZaDb 0 Tf 0 g) 45 0 obj This action was stayed for some time << endobj >> /AP 146 0 R /Rect [396.2399902344 61.7999992371 555.8400268555 86.4000015259] /Subtype /Widget endobj 64 0 obj

endobj endobj Applying these principles, the Supreme Court has twice held that the 2010 FCA amendments may not be applied to cases arising before the effective date of the amendments. endobj /Type /Page

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endobj 29 0 obj See Restatement (Second) of Contracts 302; see also United States ex rel. >> 3730(e)(4), the FCA's public disclosure bar. See Carter, 710 F.3d at 183 ([O]nce a case is no longer pending the first-to-file bar does not stop a relator from filing a related case.). /Count 4 << endobj

/AcroForm 2 0 R /Kids [72 0 R 73 0 R] endobj /BG [1] 128 0 obj << May v. Purdue Pharma L.P., 737 F.3d 908 (4th Cir.2013), the Fourth Circuit held that the PPACA amendments make it clear that the public-disclosure bar is no longer a jurisdiction-removing provision because Congress deleted the unambiguous jurisdiction-removing language previously contained in 3730(e)(4) and replaced it with a generic, not-obviously-jurisdictional phrase (shall dismiss'), while at the same time retaining jurisdiction-removing language in other sections of the statute. (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. /N 323 0 R /Type /Font /MK 133 0 R >>

<< >> Zizic v. Q2Administrators, LLC, 728 F.3d 228, 232 n. 3 (3d Cir.2013); United States ex rel. The similarity between the allegations in each complaint could provide a basis for disbelieving the Relators' assertions, see Vuyyuru, 555 F.3d at 35051, but that is an issue for the district court as fact-finder, not this court. 176 0 obj >> << endobj << 54 0 obj /CropBox [0 0 612 792] << denied, U.S. , 133 S.Ct. endobj >> See Landgraf, 511 U.S. at 265, 114 S.Ct. /Type /Font A statute has retroactive effect if it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. Id. /Resources 209 0 R /MediaBox [0 0 612 792] /Rect [33.6072998047 632.9180297852 425.9339904785 654.9180297852] See, e.g., Brewster v. Gage, 280 U.S. 327, 337, 50 S.Ct. 184 0 obj /Parent 31 0 R Under Siller, the question is not whether the allegations set out in the relator's complaint are similar to publicly disclosed allegations of fraud; the question is whether the relator's knowledge of the fraud was actually derived from the public disclosurethat is, whether the relator learned about the fraud from the public disclosure. /Type /Catalog

42 0 obj >> /Subtype /Widget << 171 0 obj /BC [0] The amended statute does not mention jurisdiction but instead states that in cases where the bar is applicable, the court shall dismiss the action unless opposed by the Government. 31 U.S.C. That the Relators do not raise this particular argument does not preclude our consideration and application of it. /F 4 << Ubl v. IIF Data Solutions, 650 F.3d 445, 451 (4th Cir.2011) (explaining that the effect of an agreement settling FCA claims is a question of federal common law as to which the Restatement (Second) of Contracts provides guidance). /HeBo 188 0 R We did not conclude that Radcliffe lost standing when he executed the Release, but instead simply held that his execution of the Release effected a waiver of his right to sue Purdue. After the amendments, however, only disclosures in federal trials and hearings and in federal reports and investigations qualify as public disclosures. 83 0 obj 33 0 obj In this case, that information was the first FCA suit filed by Mark Radcliffe. >> 107 0 obj

See Patient Protection & Affordable Care Act, Pub.L. 5 0 obj << << at 275, 114 S.Ct. /BG [1]

>>

<< /Rect [297.717010498 318.6000061035 419.8800048828 343.200012207] >> << The government investigated Radcliffe's allegations and declined to intervene in his action. /BG [1] << <<

/Rotate 0 154 0 obj /AP 163 0 R Moreover, the 2010 amendments significantly changed the scope of the public-disclosure bar. >> 114 0 obj EsBs<> *#)l United States ex rel. endobj 26 0 obj /Type /Pages 17 0 obj

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3730(e)(4)(A) (2005) (emphasis added). /AP 169 0 R 185 0 obj /BC [0] 85 0 obj endobj /Subtype /Type1

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>>

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161 0 obj 1871, 138 L.Ed.2d 135 (1997). /F 4 /CropBox [0 0 612 792] 108 0 obj

/StructParent 1 endobj

See Gonzalez v. Thaler, U.S. , 132 S.Ct.

/AP 122 0 R >> 99 0 obj endobj 80 0 obj >> Accordingly, a presumption against retroactive legislation is deeply rooted in our jurisprudence, id., and that time-honored presumption must apply unless Congress has clearly manifested its intent to the contrary, Hughes Aircraft Co. v. United States ex rel. /Outlines 4 0 R endobj /TU (Attorney Signature) 12 0 obj /Kids [56 0 R 57 0 R] endobj

>> /Rect [288.1199951172 488.3110046387 378.2399902344 502.0799865723] And because the Relators did not challenge the other res-judicata requirements, the district court held without further analysis that the instant case is barred by the doctrine of res judicata. J.A. Eligible to Practice in Texas Bar Card Number: 15774200 TX License Date: 11/01/1991 Primary Practice Location: Dallas , Texas Practice Areas: << 183 0 obj << Thus, where a dismissal is based on a settlement agreement, the principles of res judicata apply (in a somewhat modified form) to the matters specified in the settlement agreement, rather than the original complaint. Id. endobj See Keith, 900 F.2d at 740 (When a consent judgment entered upon settlement by the parties of an earlier suit is invoked by a defendant as preclusive of a later action, the preclusive effect of the earlier judgment is determined by the intent of the parties.); 18A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure 4427 (Judgments that rest on stipulations, admissions in pleadings, or consent to the very judgment itself should be given effect according to the intention of the parties.); see also Ohio Valley Envtl. /Parent 32 0 R /DA (/ZaDb 0 Tf 0 g) /F 4 endobj endobj /F 4 endobj /Flags 1 /N 369 0 R /N 365 0 R Purdue Pharma, the bankrupt drug company that makes the opioid painkiller OxyContin, is paying its attorneys up to $1,050 per hour to block the release of court records filed in Putnam County two decades ago. The 2010 amendments thus substantially narrowed the class of disclosures that can trigger the public-disclosure bar. 142 0 obj /Parent 7 0 R 1871 (declining to apply 1986 FCA amendments to action alleging pre-amendment fraud that was commenced after the effective date of the amendments). 83. /AS /Off

/Parent 19 0 R /StructParent 6 <<

/TU (Voice Phone) Communications Specialist - Science Administration and Biological Sciences. /N 318 0 R We believe that these significant revisions to the statute change[ ] the substance of the existing cause of action, Hughes Aircraft, 520 U.S. at 948, 117 S.Ct. 67 0 R 41 0 R 47 0 R 61 0 R 57 0 R 53 0 R 49 0 R 73 0 R 76 0 R 77 0 R /BC [0] 13 0 obj /Resources 281 0 R

>> /V (United States of America) >> /Rect [178.6490020752 592.6970214844 196.6490020752 610.6970214844] >> >> Pharma L.P. and Purdue Pharma, Inc. endobj /Rect [252.0549926758 592.6970214844 270.0549926758 610.6970214844] << endobj /T (Address1) << /StructParent 4 /Parent 30 0 R These adverts enable local businesses to get in front of their target audience the local community.

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Effective and efficient with Casetexts legal research suite Purdue Pharma misrepresented the potency of when...

/F 4 << /Rect [35.3760986328 565.7030029297 263.2040100098 587.7030029297] /N 371 0 R Accordingly, for the foregoing reasons, we vacate the district court's order dismissing this action on res judicata grounds and remand for further proceedings consistent with this opinion.

9(b) (In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.). /Rotate 0 << /Rect [70.2312011719 318.6000061035 287.233001709 343.200012207] << /StructParent 11 /Subtype /Widget

110 0 obj %PDF-1.4 >> >> /F 4 137 0 obj >> << /AP 116 0 R 1858, 146 L.Ed.2d 836 (2000) ), noting that dismissal with prejudice would be improper where amendment would not be futile or otherwise improper, explaining the 2010 amendments to FCA eliminated the jurisdictional language of the public disclosure bar, noting that the 2010 amendments to the FCA "significantly changed the scope of the public-disclosure bar", explaining that the 2010 FCA amendment "retroactivity inquiry looks to when the underlying conduct occurred, not when the complaint was filed", explaining changes to FCA public disclosure bar under 2010 amendments, and refusing to apply 2010 version retroactively to action alleging pre-amendment fraud commenced after effective date of amendments, declining to give retroactive effect to the post-amendment public disclosure bar because "the significant revisions to the statute 'change[] the substance of the existing cause of action'"(quoting Hughes Aircraft, 520 U.S. at 948).

/T (Name) << Poteet v. Bahler Med., Inc., 619 F.3d 104, 107 n. 2 (1st Cir.2010); United States ex rel. 66 0 R 40 0 R 46 0 R 60 0 R 56 0 R 52 0 R 48 0 R 72 0 R 74 0 R 75 0 R /F 4 /Resources 285 0 R /N 320 0 R The statute as amended provides that: The court shall dismiss an action or claim under this section, unless opposed by the Government, if substantially the 915same allegations or transactions as alleged in the action or claim were publicly disclosed. /AP 162 0 R /FT /Tx 57 0 obj of Denbigh, Inc., 637 F.3d 454, 459 (4th Cir.2011) (Th[e retroactivity] inquiry is narrow, for it asks not whether the statute may possibly have an impermissible retroactive effect in any case, but specifically whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense. (internal quotation marks and citation omitted)). /Resources 197 0 R 63 0 obj >> >> /V (950 Pennsylvania Ave. NW #7256) /MediaBox [0 0 612 792] 156 0 obj /CropBox [0 0 612 792] /Parent 30 0 R << 1483, 128 L.Ed.2d 229 (1994) (internal quotation marks omitted). /F 4 /Parent 12 0 R /Ff 12582912 endobj They allege Purdue Pharma misrepresented the potency of OxyContin when marketing it to doctors. /MediaBox [0 0 612 792] /Rotate 0 Title(s) Professor, Surgery: School: School of Medicine: Address: 35 Medical Center Way San Francisco CA 94143: Phone: 415-221-4810: The one silver lining is that this behavior is largely limited to big city law practice, in which lawyers rarely appear regularly in the same court against the same opposing counsel, the response says. 60 0 obj /N 359 0 R Radcliffe was laid off as part of a reduction in force in June << v. Aracoma Coal Co., 556 F.3d 177, 211 (4th Cir.2009) (Settlement agreements operate on contract principles, and thus the preclusive effect of a settlement agreement should be measured by the intent of the parties. (internal quotation marks omitted)). The case previously reached the U.S. Court of Appeals for the Fourth Circuit, which refused to dismiss the case based on a lack of specific allegations because the whistleblowers still had the opportunity to amend their complaint. /MK 119 0 R /TU (\(Phone\)) 31 U.S.C. United States ex rel. >> Ctr., U.S. See Landgraf, 511 U.S. at 269, 114 S.Ct. /StructParent 13 77 0 obj /Ff 12582912 /Rect [252.0549926758 592.6970214844 270.0549926758 610.6970214844] /CropBox [0 0 612 792] See, e.g., Keith v. Aldridge, 900 F.2d 736, 738 (4th Cir.1990). /Type /Page << >> /Contents [206 0 R 207 0 R 208 0 R] United States ex rel. It is apparent, however, that the public-disclosure bar is no longer jurisdictional. /Parent 21 0 R That provision says the court may award reasonable attorneys fees and expenses if the court finds the lawsuit was clearly frivolous or vexatious or brought primarily for purposes of harassment. /AP 156 0 R After all, they were suing Purdue, not for any injuries that they had personally suffered, but for Purdues fraud against the Government, a response filed Dec. 4 says. We disagree with the Relators' reading of our decision in Radcliffe. 141 0 obj 133 0 obj

<< /Rect [32.7229003906 593.5819702148 50.7229003906 611.5819702148]

31 U.S.C. /F 4 /Type /Page endobj 82 0 obj

MATH 911. Vitale v. MiMedx Grp., Inc. United States ex rel. Radcliffe v. Purdue /AS /Off /StructParent 8 /BC [0] << endobj >> >> endobj /CropBox [0 0 612 792] Steven MAY and Angela Radcliffe, PlaintiffAppellant, v. PURDUE PHARMA L.P., a limited partnership, and; Purdue Pharma, Incorporated, DefendantsAppellees. /Kids [62 0 R 63 0 R] As noted, Angela Radcliffe is Mark Radcliffe's wife; Steven May was formerly a sales representative for Purdue under Mark Radcliffe's supervision.

Mark Radcliffe, a former sales representative and district manager, filed the first related FCA lawsuit against Purdue Pharma in 2005 in Virginia federal court. >> 115, 74 L.Ed. endobj /Resources 221 0 R << WebPurdue Pharma L.P. University of Pennsylvania Carey Law School. << /F 4 /MK 145 0 R

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