Original-Source Exception Disputed
The law allows an exception if the relators are the “original source” of new fraud information. USCellular contends that O’Connor and Leibman failed to meet that threshold.
The companies’ brief states, “Fully aware of a previous and nearly identical lawsuit that advanced the same alleged fraud theory, petitioners sought to plead around the public disclosure bar by alleging that they qualified as an ‘original source’ under federal law.”
The D.C. District Court ruled that even with the original-source exception, the “new” information did not materially add to previously public allegations — a key element in dismissing the claims.
Contrasting Rulings Highlight Tension in FCA Cases
A companion D.C. Circuit case in September found that related claims against another USCellular-affiliated company did materially add to public information, allowing those claims to proceed. The February ruling challenged in this appeal reached a different conclusion, prompting the whistleblowers to seek Supreme Court review.
O’Connor and Leibman argued that the panel decision undermines Congress’ intent to incentivize whistleblowers and conflicts with the Court’s recent ruling in Cunningham v. Cornell University. They question whether independent knowledge must be so substantial that it “is likely to prompt the government to intervene and prosecute the fraud,” a standard they say the D.C. Circuit imposed incorrectly.
