On January 24, 2023, the United States District Court for the Middle District of Florida denied a motion to dismiss a qui tam suit premised on Anti-Kickback Statute (“AKS”) allegations, explaining that it could not dismiss the case because DOJ and several interested states had filed oppositions to application of the public disclosure bar. See United States ex rel. Marcus v. BioTek Labs, LLC, No. 8:18-cv-2915 (M.D. Fla. Jan. 24, 2023).
Bringing claims under the FCA and state analogs, the relator argued that the defendants violated the AKS by providing remuneration—in the form of “free supplies, personnel, training, and equipment, as well as a percentage of gross collections”—to a medical practice to induce the practice to work with the defendants to offer allergy testing and treatment to their patients. Among other bases, the defendants moved to dismiss under the FCA’s public disclosure bar and analogous bars incorporated into state False Claims Acts.
Under subsection 3730(e)(4) of the FCA, the public disclosure bar applies—“unless opposed” by the United States or unless the relator is an “original source”—when the relator’s allegations are “substantially the same” as what has been disclosed publicly though one of three enumerated channels.
DOJ took the unusual step of filing an opposition to the application of the public disclosure bar. In its opposition, DOJ noted that the defendants contended that the relator’s allegations were previously disclosed (1) in “the course of...
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