The False Claims Act tries to prevent “parasitic” lawsuits. See Bellevue v. Universal Health Servs. of Hartgrove, Inc., 867 F.3d 712, 716 (7th Cir. 2017). It tries to keep “opportunistic plaintiffs” from taking advantage of what's already out there.
In this circuit, the public disclosure bar is routinely raised through a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See, e.g., Bellevue v. Universal Health Servs. of Hartgrove, Inc., 867 F.3d 712, 715 (7th Cir. 2017); Leveski v. ITT Educ. Servs., Inc., 719 F.3d 818, 826 (7th Cir. 2013). Prior to 2010, this was clearly proper, given the Supreme Court's interpretation of the public disclosure bar statute as jurisdictional.
"Determining whether to apply the public-disclosure bar requires the court to complete a three-step inquiry." Bellevue v. Univ. Health Servs. of Hartgrove, Inc. , 867 F.3d 712, 718 (7th Cir. 2017). First, the court "examine[s] whether the relator's allegations have been ‘publicly disclosed.’ "
, it “also seeks to prevent parasitic lawsuits by ‘opportunistic plaintiffs who have no significant information to contribute of their own.'” Bellevue v. Universal Health Servs. of Hartgrove, Inc., 867 F.3d 712, 716 (7th Cir. 2017) (quoting Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 283 (2010)).
The amendments both changed "what constitutes a public disclosure" under 31 U.S.C. § 3730(e)(4)(A) and revised the definition of "original source" under section 3730(e)(4)(B). Bellevue v. Universal Health Servs. of Hartgrove, Inc., 867 F.3d 712, 718 (7th Cir. 2017). In the initial opinion, the Court applied the pre-2010 version of the law to determine whether the Relators' FCA claims were publicly disclosed before Relators filed the lawsuit.
That the substantially-the-same standard adopted in the 2010 amendment resembles the standard we already used is no accident; the amendment "expressly incorporates the ‘substantially similar’ standard in accordance with the interpretation of this circuit and most other circuits." Bellevue v. Universal Health Servs. of Hartgrove, Inc. , 867 F.3d 712, 718 (7th Cir. 2017), cert. denied , ––– U.S. ––––, 138 S.Ct. 1284, 200 L.Ed.2d 470 (2018). Thus, the 2010 amendment confirms the vitality of our pre-2010 standard.
The IFCA “closely mirrors the FCA,” Bellevue v. Universal Health Servs. of Hartgrove, Inc., 867 F.3d 712, 716 n.2 (7th Cir. 2017) (quotation marks omitted), and imposes liability on anyone who submits or causes the submission of false claims to the State of Illinois, United States ex rel. Sibley v. A Plus Physicians Billing Serv., Inc., No. 13 C 7733, 2015 WL 8780548, at *3 (N.D. Ill.Dec. 15, 2015); 740 ILCS 175/3(a)(1). The Seventh Circuit has “not found any difference between the [FCA and IFCA] that is material to a jurisdictional or merits analysis.”
Under the public disclosure standard, a relator must “present ‘genuinely new and material information' beyond what has been publicly disclosed.'” Cause of Action, 815 F.3d at 281 (quoting United States ex rel. Goldberg v. Rush Univ. Med. Ctr., 680 F.3d 933, 935-36 (7th Cir. 2012)). Courts also consider: “whether relators allege a different kind of deceit; whether relators' allegations require independent investigation and analysis to reveal any fraudulent behavior; whether relators' allegations involve an entirely different time period than the publicly disclosed allegations; and whether relators supplied vital facts not in the public domain[.]” Bellevue v. Universal Health Servs. of Hartgrove, Inc., 867 F.3d 712, 719 (7th Cir. 2017) (internal quotations omitted).
As the Seventh Circuit has noted, "the Illinois False Claims Act applies the same standards as the federal statute." United States ex rel. Prose v. Molina Healthcare of Ill., Inc., 17 F.4th 732, 739 (7th Cir. 2021); see also Bellevue v. Universal Health Serv. of Hartgrove, Inc., 867 F.3d 712, 716 n. 2 (7th Cir. 2017) ("The ICFA 'closely mirrors the FCA,' and to date we have not found any difference between the statutes that is material to a jurisdictional or merits analysis."). Accordingly, this Court will presumptively apply the federal standards (except where a party points out a difference between federal and state law).
Id. The public disclosure bar “is a jurisdictional requirement that must be addressed before a court can reach the merits of the FCA claims.” Bellevue v. Universal Health Servs. of Hartgrove, Inc., 867 F.3d 712, 716-17 (7th Cir. 2017).