February 20, 2020

1st Circ. Revives Worker’s FCA Claims PharMerica

“In short, PharMerica would require a relator to have either participated in the fraud or observed it in operation to qualify as an original source and would exclude a relator who discovered the fraud after the fact and brought it to the government’s attention. We disagree with that reading of the statute. Indeed, PharMerica’s reading would exclude a relator who is told by managers at his company that a department he does not work for is engaging in fraud. … We do not think that Congress intended to reward as original sources only those who participated in the fraud. Indeed, Banigan would seem to be the most likely type of person to function as an original source. Congress’s attempt to preclude parasitic claims need not preclude claims by whistleblowers.”

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