FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA; STATE No. 21-15420 OF CALIFORNIA; STATE OF COLORADO; STATE OF D.C. No. CONNECTICUT; STATE OF 3:18-cv-03018- DELAWARE; STATE OF FLORIDA; JCS STATE OF GEORGIA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF INDIANA; STATE OF IOWA; STATE OPINION OF LOUISIANA; STATE OF MARYLAND; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF MONTANA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF NORTH CAROLINA; STATE OF OKLAHOMA; STATE OF RHODE ISLAND; STATE OF TENNESSEE; STATE OF TEXAS; STATE OF VERMONT; STATE OF WASHINGTON; COMMONWEALTH OF MASSACHUSETTS; COMMONWEALTH OF VIRGINIA; DISTRICT OF COLUMBIA, ex rel ZACHARY SILBERSHER, Relator, Plaintiffs-Appellees, v. 2 UNITED STATES EX REL. SILBERSHER V. ALLERGAN ALLERGAN, INC.; ALLERGAN USA, INC.; ALLERGAN SALES, LLC; FOREST LABORATORIES HOLDINGS, LTD.; ADAMAS PHARMA LLC; ADAMAS PHARMACEUTICALS, INC., Defendants-Appellants. Appeal from the United States District Court for the Northern District of California Joseph C. Spero, Magistrate Judge, Presiding Argued and Submitted January 10, 2022 San Francisco, California Filed August 25, 2022 Before: Ronald M. Gould, Mark J. Bennett, and Ryan D. Nelson, Circuit Judges. Opinion by Judge Gould UNITED STATES EX REL. SILBERSHER V. ALLERGAN 3 SUMMARY * False Claims Act The panel reversed the district court’s order denying defendants’ motion to dismiss a qui tam action under the False Claims Act and remanded for further proceedings. Relator alleged that, by virtue of fraudulently-obtained patents on two Alzheimer’s disease drugs, defendants prevented generic drug competitors from entering the market. Relator alleged that this permitted defendants to charge Medicare inflated prices for the two drugs, in violation of the False Claims Act. The district court denied defendants’ motion to dismiss based on the False Claims Act’s public disclosure bar, which prevents a relator from merely repackaging publicly disclosed information for personal profit by asserting a claim under the Act. Addressing the public disclosure bar, as revised in 2010, the panel reaffirmed the elements of the test for triggering the bar: (1) the disclosure at issue occurred through one of the channels specified in the statute; (2) the disclosure was public; and (3) the relator’s action is substantially the same as the allegation or transaction publicly disclosed. Only the first element was at issue. The statute states that the public disclosure bar applies if “substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed . . . in . . . [an] other Federal . . . hearing.” The panel held that an ex parte patent prosecution is an “other * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 UNITED STATES EX REL. SILBERSHER V. ALLERGAN Federal . . . hearing” under 31 U.S.C. § 3730(e)(4)(A)(ii); accordingly, the public disclosure bar was triggered. The panel expressed no view on whether relator still could bring his qui tam action because he …
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