The Second Circuit, in United States ex rel. Foreman v. AECOM, No. 20-2756-cv, 2021 WL 5406437 (2d Cir. Nov. 19, 2021), addressed a question it had not previously decided, namely, whether disclosures made solely to the government are “public disclosures” sufficient to trigger the public disclosure bar under the False Claims Act (FCA).
The public disclosure bar, which is codified at 31 U.S.C. § 3730(e)(4)(A), provides that:
The court shall dismiss an action or claim under this section, unless opposed by the Government, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed–
(i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party;
(ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation;
or
(iii) from the news media,
unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.
In AECOM, the qui tam Relator who brought the lawsuit alleged that the defendant had submitted fraudulent claims under a defense contract with the United States, pursuant to which defendant was supposed provide certain maintenance and management support services to the United States Army in Afghanistan. Specifically, the Relator alleged that defendant had falsely certified its compliance with the contract by overstating its man-hour utilization rate, improperly billing...
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