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Ninth Circuit Overturns Twenty-Three Year Old Precedent Regarding Original Source Status

July 14, 2015

Author: Jason M. Crawford.

In U.S. ex rel. Hartpence v. Kinetic Concepts, the Ninth Circuit recently overturned its 1992 decision in Wang, which required relators to have played a role in publicly disclosing the allegations and information on which their suits are based to qualify as an “original source.”

For example, under Wang, the public disclosure of information in a congressional report would bar a whistleblower from bringing an FCA action based on that information unless the whistleblower had played a role in disclosing the information to the congressional committee. This requirement created a third prong to the original source test that other circuits have refused to adopt.

In a unanimous en banc ruling, the Ninth Circuit found that it was time to give this third prong “a respectful burial.” The eleven-judge panel held that there are two—and only two—requirements for a whistleblower to be an original source: (1) the whistleblower must voluntarily inform the government before they file suit; and (2) the whistleblower must have direct and independent knowledge of the allegations.

This decision makes it easier for whistleblowers to qualify as an original source. However, in light of the 2010 amendments to the FCA, which expanded the scope of the “original source” exception by eliminating the “direct” knowledge requirement, the Ninth Circuit’s ruling will only affect actions to which the pre-2010 version of the public disclosure bar is applicable.

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Jason M. Crawford
Counsel – Washington, D.C.
Phone: +1 202.624.2562
Email: jcrawford@crowell.com