Public Disclosure Bar Defense Under False Claims Act Jeopardized by Recent Federal Amendments

The public disclosure bar under the False Claims Act (FCA) recently spelled defeat for the whistleblower plaintiff in U.S. v. McKesson Corp. In this action, which arose under the FCAs qui tam provisions, a federal court in Mississippi granted summary judgment in favor of McKesson and the other defendants after finding that the claim brought by the qui tam whistleblower plaintiff was based on publicly disclosed information and that he was not the original source of that information. During the relevant period for this ruling, the jurisdictional bar under the FCA provided a solid defense mechanism for companies defending qui tam lawsuits brought by parasitic whistleblowers. Recent amendments to the public disclosure bar provision of the FCA, however, may have severely narrowed a companys future ability to rely on this defense. Specifically, the Patient Protection and Affordable Care Act (PPACA), which was sign