• CIVIL FALSE CLAIMS ACT: Supreme Court Agrees to Decide Another "Public Disclosure" Issue: Are Documents Obtained through FOIA Requests "Public Disclosures" under the False Claims Act?
  • September 30, 2010 | Authors: Douglas W. Baruch; John T. Boese
  • Law Firm: Fried, Frank, Harris, Shriver & Jacobson LLP - Washington Office
  • For years, the circuit courts have been clearly and deeply split on the issue of what “public disclosure” means when the qui tam relator learns critical elements of his or her claim as a result of receiving documents from a government agency under the Freedom of Information Act (“FOIA”). Yesterday, after declining to weigh in on a separate “public disclosure” circuit split earlier this summer,1 the Supreme Court granted certiorari in Schindler Elevator Corp. v. United States ex rel. Kirk, No. 10-188 and will resolve that conflict. The decision below, United States ex rel. Kirk v. Schindler Elevator Corp., 601 F.3d 94 (2d Cir. 2010), was wrong on a number of issues; however, the Question Presented in the petition for certiorari was limited to the public disclosure issue. If the Court rules in favor of the defendant and holds that a FOIA response qualifies as a public disclosure, that ruling could prompt another round of misguided legislative action that will again unsettle this area of FCA law. Although the specific public disclosure provision at issue in Schindler was amended in the 2010 Patient Protection and Affordable Care Act, the new language¿which refers to a disclosure via a “Federal report”¿is sufficiently similar to the old “administrative report” provision that the Court’s decision in Schindler should continue to carry weight even after the recent amendments.