United States of America, ex rel Michael J. Fisher v. JPMorgan Chase Bank, N.A.RESPONSE in Opposition re MOTION for Summary Judgment / Defendant's Motion for Summary Judgment Under Public Disclosure BarE.D. Tex.February 6, 2019 1692803.1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION UNITED STATES OF AMERICA Ex rels. Michael J. Fisher, Keith Franklin, Chezza Hartfield and Reginald McPhaul, Plaintiffs, v. JPMORGAN CHASE BANK, N.A., Defendant. Civil Action No. 4:16-CV-395 JUDGE AMOS L. MAZZANT Relators’ Opposition to Defendant’s Motion for Summary Judgment Under the Public Disclosure Bar Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 1 of 28 PageID #: 2089 1692803.1 -i- Table of Contents Page INTRODUCTION ......................................................................................................................... 1 BACKGROUND ........................................................................................................................... 2 CHASE STATES AN INCORRECT LEGAL STANDARD ....................................................... 4 ARGUMENT ................................................................................................................................. 6 I. Relators’ Core Allegations Are Not “Substantially the Same” As Prior Disclosures. ........................................................................................................................ 6 A. Courts assess public disclosure on a claim-by-claim basis. ................................... 6 B. Chase cannot establish public disclosure for two of Relators’ claims. ................ 11 II. Relators Are Original Sources ......................................................................................... 14 A. Relators’ knowledge is independent of public documents .................................. 15 B. Relators’ knowledge adds materially to the publicly disclosed information. ...... 16 C. Relators disclosed their allegations to the Government before filing. ................. 17 D. Relators were not required to disclose every allegation to the Government before Mr. Fisher filed the original complaint. .................................................... 18 CONCLUSION ............................................................................................................................ 21 Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 2 of 28 PageID #: 2090 Table of Authorities Page -ii- 1692803.1 CASES Abbott v. BP Expl. & Prod., Inc., 851 F.3d 384 (5th Cir. 2017) .............................................................................................. 5 Fed. Rec. Servs., Inc. v. U.S., 72 F.3d 447 (5th Cir. 1995) ................................................................................................ 9 Graham Cty. Soil & Water Conservation Distr. v. U.S. ex rel. Wilson, 559 U.S. 280 (2010) ............................................................................................................ 1 In re Natural Gas Royalties, 562 F.3d 1032 (10th Cir. 2009) .......................................................................................... 9 Leveski v. ITT Educ. Servs., Inc., 719 F.3d 818 (7th Cir. 2013) ............................................................................................ 11 Little v. Shell Exploration & Prods., 690 F.3d 282 (5th Cir. 2012) ..................................................................................... passim Malhotra v. Steinberg, 770 F.3d 853 (9th Cir. 2014) .............................................................................................. 6 Rockwell Int’l Corp. v. United States, 549 U.S. 457 (2007) ................................................................................................... passim Stennett v. Premier Rehab., LLC, 479 F. App’x 631 (5th Cir. 2012) ..................................................................................... 14 U.S. ex rel. Advocates for Basic Legal Equality, Inc. v. U.S. Bank, 816 F.3d 428 (6th Cir. 2016) ............................................................................................ 17 U.S. ex rel. Beauchamp v. Academi Training Ctr., LLC, 816 F.3d 37 (4th Cir. 2016) ........................................................................................ 1, 2, 5 U.S. ex rel. Boise v. Cephalon, Inc., No. 08-287, 2014 WL 5089671 (E.D. Pa. Oct. 9, 2014) .................................................. 18 U.S. ex rel. Boothe v. Sun Healthcare Grp., Inc., 496 F.3d 1169 (10th Cir. 2007) .................................................................................. 6, 7, 9 U.S. ex rel. Branch Consultants, LLC v. Allstate Ins. Co., 782 F. Supp. 2d 248 (E.D. La. 2011) ................................................................................ 20 U.S. ex rel. Colquitt v. Abbott Laboratories, 864 F. Supp. 2d 499 (N.D. Tex. 2012) ...................................................................... passim U.S. ex rel. Duxbury v. Ortho Biotech Products, 579 F.3d 13 (1st Cir. 2009) ............................................................................................... 19 Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 3 of 28 PageID #: 2091 Table of Authorities (continued) Page -iii- 1692803.1 U.S. ex rel. Fisher v. Homeward Res., Inc., No. 12-461, 2015 WL 3776444 (E.D. Tex. June 17, 2015)................................................ 6 U.S. ex rel. Fisher v. Ocwen Loan Serv., LLC, No. 12-543, 2016 WL 3031713 (E.D. Tex. May 25, 2016)....................................... passim U.S. ex rel. Fried v. W. Ind. Sch. Dist., 527 F.3d 439 (5th Cir. 2008) ............................................................................................ 14 U.S. ex rel. Hendrickson v. Bank of Am., N.A., 343 F. Supp. 3d 610 (N.D. Tex. 2018), appeal filed (5th Cir. No. 18-11472) ............. 6, 11 U.S. ex rel. Howard v. Lockheed Martin Corp., No. 99-285, 2011 WL 4348104 (S.D. Ohio Sept. 16, 2011) ............................................ 18 U.S. ex rel. Jamison v. McKesson Corp., 649 F.3d 322 (5th Cir. 2011) ..................................................................................... passim U.S. ex rel. LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149 F.3d 227 (3d Cir. 1998).............................................................................................. 18 U.S. ex rel. Lockey v. City of Dallas, Tex., No. 11-354, 2013 WL 268371 (N.D. Tex. Jan. 23, 2013) ................................................ 11 U.S. ex rel. Mahoney v. Educ. Mgmt. Corp., 871 F. Supp. 2d 433 (W.D. Pa. 2012) ............................................................................... 18 U.S. ex rel. Merena v. SmithKline Beecham Corp., 205 F.3d 97 (3d Cir. 2000).................................................................................. 6, 7, 20, 21 U.S. ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294 (3d Cir. 2016).............................................................................................. 16 U.S. ex rel. Precision Co. v. Koch Indus., Inc., 31 F.3d 1015 (10th Cir. 1994) .......................................................................................... 18 U.S. ex rel. Ritchie v. Lockheed Martin Corp., 558 F.3d 1161 (10th Cir. 2009) ........................................................................................ 18 U.S. ex rel. Wilson v. Graham Cty. Soil & Water Conservation Dist., 528 F.3d 292 (4th Cir. 2008), rev’d on other grounds, 559 U.S. 280 (2010), reinstated in relevant part, 399 F. App’x 774 (4th Cir. 2010) ................................................................ 6 U.S. ex. rel. Solomon v. Lockheed Martin Corp., 878 F.3d 139 (5th Cir. 2017) .................................................................................. 4, 12, 15 United States v. Renda Marine, Inc., 667 F.3d 651 (5th Cir. 2012) .............................................................................................. 5 Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 4 of 28 PageID #: 2092 Table of Authorities (continued) Page -iv- 1692803.1 STATUTES 31 U.S.C. § 3730(e)(4)(A) .............................................................................................. 5, 7, 11, 15 31 U.S.C. § 3730(e)(4)(B) ................................................................................................ 15, 17, 18 Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 5 of 28 PageID #: 2093 - 1 - 1692803.1 Relators Michael J. Fisher, Keith Franklin, Chezza Hartfield, and Reginald McPhaul respectfully ask this Court to deny Defendant JPMorgan Chase Bank N.A.’s Motion for Summary Judgment under the Public Disclosure Bar. Introduction Chase seeks to use its history of misconduct as a shield against further liability to preclude, under the public disclosure bar, Relators’ detailed allegations of Chase’s new wrongdoing. The bar exists “‘to strike a balance between encouraging private persons to root out fraud and stifling parasitic lawsuits’ in which a relator, instead of plowing new ground, attempts to free-ride by merely reiterating previously disclosed fraudulent acts.” U.S. ex rel. Beauchamp v. Academi Training Ctr. LLC, 816 F.3d 37, 43 (4th Cir. 2016) (quoting Graham Cty. Soil & Water Conservation Distr. v. U.S. ex rel. Wilson, 559 U.S. 280, 295, 298 (2010)). That balance would be upset if vague knowledge that a defendant had generally committed wrongdoing in the past precluded relators from stepping forward to hold that defendant accountable for specific, previously unknown misconduct. The public disclosure bar is not a “get out of jail free” card. Chase’s motion rests on a pair of false premises. First, Chase asserts that prior knowledge of any misconduct related to HAMP precludes new claims alleging other previously undisclosed misconduct in connection with the same program. Chase’s argument contradicts the bedrock principal of the public disclosure bar: that each of Relator’s claims is assessed independently. See Rockwell Int’l Corp. v. U.S., 549 U.S. 457, 476 (2007). Chase has no colorable basis to assert public disclosure over the Complaint’s core allegations. In particular, Relators allege that Chase used its participation in the Home Affordable Modification Program (“HAMP”) to steal from struggling homeowners by inflating borrowers’ unpaid principal balances to include (1) missed principal payments and (2) anticipated escrow shortages. The disclosures in Chase’s motion do not even hint at similar Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 6 of 28 PageID #: 2094 1692803.1 -2- violations for the straightforward reason that Relators brought this fraud to light for the first time when they disclosed it to the Government. Chase’s second false premise relates to the “original source” exception to the public disclosure bar. Under that exception, courts do not dismiss claims under the public disclosure bar if the relator is the “original source” of the specific allegations in the complaint such that the relator is not attempting “to free-ride by merely reiterating previously disclosed fraudulent acts.” Academi Training Ctr., 816 F.3d at 43. Chase argues that a relator can only qualify as an original source if she discloses her allegations before any of her co-relators file a complaint. This proposition has no support in law and contradicts well-established practice confirming that a relator is an “original source” so long as she discloses her allegations to the Government before filing those allegations publicly. Relators qualify as an original source even if Chase has a colorable argument that there was some level of prior public disclosure. Relators base all of their claims on their personal observations during their years working for Chase and their direct involvement in the loan modification process. And Relators disclosed these claims to the Government before alleging them in this lawsuit. The Court should deny Chase’s motion. Background The Court is familiar with this case’s procedural history, the HAMP program, and Relators’ allegations, as summarized in the Court’s Opinion denying Chase’s motion to strike and for a more definite statement. Doc. 100 at 1-4.1 Because Chase moves for summary judgment on the basis that Relator’s claims were publicly disclosed, however, an understanding 1 That order, Chase’s motion, and this opposition cite the Fifth Amended Complaint, Doc. 71. On January 30, 2019, Relators moved for leave to file a Sixth Amended Complaint. Doc. 114. That proposed amendment is limited to a single clarifying footnote unrelated to Chase’s motion. Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 7 of 28 PageID #: 2095 1692803.1 -3- of each of the specific claims that Relators advance are critical to the Court’s analysis of this motion. This will allow the Court to determine whether the public “disclosures correspond in scope and breadth.” Little v. Shell Expl. & Prod. Co., 690 F.3d 282, 293 (5th Cir. 2012). In other words, the Court must evaluate whether Relators offer new allegations or whether they “‘could have produced the substance of the complaint merely by synthesizing the public disclosures’ description of’ the scheme.” Id. (quoting U.S. ex rel. Jamison v. McKesson Corp., 649 F.3d 322, 331 (5th Cir. 2011)). Relators have alleged four unique and distinct theories of fraud that rise or fall independently. First, Relators allege that Chase artificially inflated homeowners’ unpaid principal balances by capitalizing unpaid principal payments, even though those amounts were already accounted for in the outstanding pre-modification principal balance. Compl. ¶¶ 6-7, 77-93. This practice made homeowners owe more than they should, violated the HAMP program guidelines, and frustrated the program’s essential purposes of relieving the financial burden on distressed homeowners and avoiding future defaults. It also allowed Chase to collect increased servicing fees (which are based on a percentage of the borrower’s unpaid principal balance) and millions of dollars in HAMP incentive payments that it would not have received had the Government known of its fraudulent scheme. Second, Relators allege that Chase artificially increased homeowners’ unpaid principal balances by charging homeowners for anticipated shortfalls in escrow accounts (such as tax payments) and including those amounts in the unpaid principal balance, even though its tax department charged those same amounts at the end of the year. Compl. ¶¶ 8, 94-108. This had the effect of recouping from the homeowner increased escrow payments over the following 1-5 Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 8 of 28 PageID #: 2096 1692803.1 -4- years and charging the same amount twice. Chase’s misconduct lined its pockets by falsely inflating loan balances while fraudulently receiving HAMP incentive payments. Third, Relators assert that Chase routinely put loans through the foreclosure process at the same time homeowners pursued HAMP modifications, a process known as “dual tracking.” Compl. ¶¶ 9, 109-21. Many times, homeowners abandon their homes when facing foreclosure. Vacant homes can mean lower property values and higher crime rates for communities. One of the Government’s goals in enacting HAMP was to eliminate dual tracking and encourage distressed borrowers to stay in their homes. Chase’s practice of systematically dual tracking loans undermined this goal. Fourth, Relators allege that Chase’s HAMP program suffered from widespread, systematic failures due to understaffing, a lack of policies and procedures designed to run a compliant HAMP program, and a commitment towards “productivity, volume, and profit maximization, rather than accuracy and compliance.” Compl. ¶¶ 10, 122-34. Chase knew that it was not running a compliant HAMP program but nonetheless fraudulently certified to the Government that it was, leading the Government to pay Chase millions of dollars in incentive payments. Each of the above four types of misconduct, standing alone, rendered Chase’s certifications false and constituted a violation of the False Claims Act. Compl. ¶¶ 92-93, 107-08, 120-21, 135. Chase States an Incorrect Legal Standard The 2010 version of the False Claims Act (“FCA”) applies because Relators filed this case after March 23, 2010, and this litigation is based on Chase’s misconduct after that date. See U.S. ex. rel. Solomon v. Lockheed Martin Corp., 878 F.3d 139, 143 (5th Cir. 2017). Chase’s Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 9 of 28 PageID #: 2097 1692803.1 -5- motion, however, relies largely on cases interpreting prior, inapplicable versions of the statute. See, e.g., Mot. at 19-20. The current statute provides: The court shall dismiss an action or claim under this section, unless opposed by the Government, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed – (i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party; (ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit or investigation; or (iii) from the news media, unless . . . the person bringing the action is an original source of the information. 31 U.S.C. § 3730(e)(4)(A). Under the operative version of the statute, previously jurisdictional, is now an affirmative defense. See Abbott v. BP Expl. & Prod., Inc., 851 F.3d 384, 387 n.2 (5th Cir. 2017) (“We agree with our sister circuits that the public disclosure bar is no longer jurisdictional.”); see also Academi Training Ctr., 816 F.3d at 40 (“Post-amendment, the public-disclosure bar is a grounds for dismissal—effectively, an affirmative defense—rather than a jurisdictional bar.”). Despite this clear law, Chase wrongly asserts in footnote 37 of its Motion that Relators bear a portion of the burden of proof. Chase’s only support for its incorrect notion is cases applying the inapposite jurisdictional, pre-2010 public disclosure bar. Cf., e.g., Jamison, 649 F.3d at 327 (explaining the burden-shifting scheme Chase cites is a consequence of the rule that “the party seeking to invoke federal jurisdiction bears the burden of demonstrating that jurisdiction is proper”). In this case, as with any affirmative defense, the public disclosure bar applies only if Chase “establish[es] beyond peradventure all of the essential elements of the defense.” U.S. v. Renda Marine, Inc., 667 F.3d 651, 659 (5th Cir. 2012) (emphasis in original) (internal quotation marks omitted).2 This Court “must view the evidence and the inferences drawn from that 2 Before 2010, courts articulated a three-step process to determine whether the bar applied: “1) whether there has been a ‘public disclosure’ of allegations or transactions, 2) whether the qui tam action is ‘based upon’ such publicly disclosed allegations, and 3) if so, whether the relator is the ‘original source’ of the information.” U.S. ex rel. Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 10 of 28 PageID #: 2098 1692803.1 -6- evidence in the light most favorable to the non-moving party,” granting summary judgment “only if there is no genuine issue of material fact.” U.S. ex rel. Fisher v. Homeward Res., Inc., No. 12-461, 2015 WL 3776444, at *2 (E.D. Tex. June 17, 2015). Chase does not (and cannot) meet this standard. Argument I. Relators’ Core Allegations Are Not “Substantially the Same” As Prior Disclosures. A. Courts assess public disclosure on a claim-by-claim basis. It is well-established that public disclosure of one claim for fraud does not insulate the defendant from other claims that were not publicly disclosed. See Little, 690 F.3d at 293 (“When specifics are alleged, it is crucial to consider whether the disclosures correspond in scope and breadth.”); see also U.S. ex rel. Boothe v. Sun Healthcare Grp., Inc., 496 F.3d 1169, 1175 (10th Cir. 2007) (Gorsuch, J.).3 As then-Judge Gorsuch explained, “district courts should assess jurisdiction on a claim- by-claim basis, asking whether the public disclosure bar applies to each reasonably discrete claim of fraud.” Boothe, 496 F.3d at 1176; see also U.S. ex rel. Merena v. SmithKline Beecham Corp., 205 F.3d 97, 102 (3d Cir. 2000) (Alito, J.) (“[J]oinder should not result in the dismissal of claims that would otherwise have survived.”). In applying the public disclosure bar, “each claim in a multi-claim complaint must be treated as if it stood alone.” Boothe, 496 F.3d at 1176 (quoting Merena, 205 F.3d at 102). Colquitt v. Abbott Labs, 858 F.3d 365, 373 (5th Cir. 2017) (citation omitted). Now that public disclosure is an affirmative defense, this “test” merely states the elements of that defense. See U.S. ex rel. Hendrickson v. Bank of Am., N.A., 343 F. Supp. 3d 610, 623 (N.D. Tex. 2018), appeal filed (5th Cir. No. 18-11472) (explaining that if the public disclosure bar “is an affirmative defense, it would require Defendants to establish beyond peradventure all of the essential elements of the defense”) (internal quotation marks omitted). 3 See also, e.g., Malhotra v. Steinberg, 770 F.3d 853, 861 (9th Cir. 2014); U.S. ex rel. Wilson v. Graham Cty. Soil & Water Conservation Dist., 528 F.3d 292, 309 (4th Cir. 2008), rev’d on other grounds, 559 U.S. 280 (2010), reinstated in relevant part, 399 F. App’x 774 (4th Cir. 2010) (unpublished). Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 11 of 28 PageID #: 2099 1692803.1 -7- This principle is compelled by the Supreme Court’s decision in Rockwell Int’l Corp. v. U.S., in which a relator asserted that his status as an original source with respect to one claim provided the Court with jurisdiction over all of his claims. 549 U.S. at 476. The “Court rejected what it labeled ‘claim smuggling’ and indicated that jurisdiction should be assessed under Section 3730(e)(4)(A) on a claim-by-claim basis.” Boothe, 496 F.3d at 1176 (quoting Rockwell, 549 U.S. at 476). In doing so, the Court expressly relied on then-Judge Alito’s opinion in Merena, which addressed the same issue with respect to the question of public disclosure. Rockwell, 549 U.S. at 476 (quoting Merena, 205 F.3d at 102). 1. Chase cannot escape liability for Relators’ claims simply by pointing to different, previously disclosed misbehavior. Chase’s motion fails because it relies on the false premise that if any evidence of fraud related to HAMP was publicly disclosed, then all claims are foreclosed. See Mot. at 12 (“[T]his action boils down to the allegation that Chase fraudulently certified its compliance with HAMP requirements and other relevant federal or state laws.”); id. at 19 (“That not every allegation in the Complaint was publicly disclosed does not matter.”). But Relators’ claims, which address different specific practices, are “reasonably discrete claim[s] of fraud” that must be analyzed independently. Boothe, 496 F.3d at 1176; see also Little, 690 F.3d at 293. For example, if the evidence ultimately shows that Chase did unlawfully increase unpaid principal balances but did not subject homeowners to dual tracking, Relators will have proven fraud in connection with (at minimum) the loans with artificially increased balances. Rockwell is binding on this point. There, the relator alleged “numerous violations of” environmental laws, all of which induced “payments” under the same contract. 549 U.S. at 463- 64. The Supreme Court understood that even though the different theories of fraud ultimately ran through the same “environmental, health, and safety compliance” certifications in the same Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 12 of 28 PageID #: 2100 1692803.1 -8- contract resulting in the same payments, the relator alleged independent claims for each environmental violation identified. See id. at 475-76 (describing separate claims including a “spray-irrigation claim” and a “pondcrete claim,” and rejecting the relator’s argument that “his original-source status with respect to” one claim “provided jurisdiction with respect to all of his claims”). 2. Chase’s Fifth Circuit caselaw does not stand for the proposition that fraud should be evaluated generally, rather than claim-by-claim. Chase’s Fifth Circuit cases are in full accord with the Supreme Court’s opinion in Rockwell and then-Judge Gorsuch’s opinion in Boothe. Chase contends otherwise only by conflating the commonsense notion that a relator must allege a new claim that has not been publicly disclosed, not merely new evidence of the same claim with the incorrect proposition that entirely different misbehavior bars an entirely new claim. Chase notes that the Fifth Circuit’s decision in U.S. ex rel. Colquitt v. Abbott Labs., “is directly on point.” 858 F.3d 365 (5th Cir. 2017). This case does control, but it does not say what Chase asserts. There, the relator brought three claims: fraudulent inducement as to FDA clearance of a medical device, violation of the Anti-Kickback Statute, and off-label marketing. Id. at 370. The district court dismissed the kickback claim for failure to state a claim, dismissed the fraudulent inducement claim for want of jurisdiction under public disclosure, and permitted the off-label marketing claim to proceed. Id. at 370-71. The Fifth Circuit affirmed. Id. Just because one of the alleged fraudulent schemes was barred by public disclosure did not somehow preclude the other two theories. The Court here must also evaluate the alleged fraudulent schemes on a claim-by-claim basis. Chase also misunderstands the dismissed claim in Colquitt. Relator based the fraudulent inducement claim on the fact that medical stents were not designed for the purpose for which the Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 13 of 28 PageID #: 2101 1692803.1 -9- manufacturer sought FDA approval. See id. at 370. His complaint contended that two facts would prove the improper design—stent dimensions and catheter dimensions. Id. at 373-74. One fact—the stent dimensions—was publicly disclosed and the other—catheter dimensions—was not. Id. But both were “giveaway[s] as to the true purpose of the stents.” Id. at 374. That is a quintessential example of a relator producing new evidence going to the same factual claim as distinguished from fundamentally independent theories of fraud. Cf. In re Natural Gas Royalties, 562 F.3d 1032, 1037-38, 1040 (10th Cir. 2009) (holding that allegations of different “mismeasurement techniques” that all “underreport[ed] the heating content and volume of gas, with a resultant under payment of federal royalties,” did not constitute separate “separate and unique claim[s] of fraud”). Fifth Circuit caselaw has long-reflected the commonsense notion that a relator must allege a new claim that has not been publicly disclosed, not merely new evidence of the same claim. U.S. ex rel. Reagan v. East Tex. Med. Ctr. Reg’l Healthcare Sys., 384 F.3d 168, 176 (5th Cir. 2004) (“[An] action even partly based upon public allegations or transactions is nonetheless ‘based upon’ such allegations or transactions.” (quoting Fed. Rec. Servs., Inc. v. U.S., 72 F.3d 447, 451 (5th Cir. 1995))). This is indistinguishable from then-Judge Gorsuch’s statement that a relator may not “seek[] jurisdiction over a claim partially based on public information.” Boothe, 496 F.3d at 1176 n.6. Chase contends otherwise on pages 19 and 20 of its motion only by misunderstanding the facts in Reagan. In that case, the relator alleged what amounted to a single theory of fraud—the “core of [her] complaint” was that two healthcare companies were “related entities, so they should not have been reimbursed by Medicare for anything other than the actual cost of the goods and services sold to one another.” 384 F.3d at 175. Here, Relators make out four different claims, based on four different theories of fraud. Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 14 of 28 PageID #: 2102 1692803.1 -10- Nor does Jamison support Chase’s position. 649 F.3d 322. In that case the court was bound by the pre-2010 statute to evaluate public disclosure as a jurisdictional prerequisite, and thus looked only to the relator’s “original complaint to define the scope of his action.” Id. at 328. Unlike Relators’ complaint here, which names one defendant and alleges four specific fraudulent schemes, the complaint in Jamison “listed almost 450” defendants and “described several possible schemes, but without alleging which defendants engaged in which schemes or what particular allegations were fraudulent.” Id. at 328. Amazingly, it did not “include particular allegations against any defendant.” Id. For that reason, the court analyzed public disclosure by measuring “general allegations of fraud combined with an undifferentiated list of defendants” against similarly vague and general public disclosures. Id. at 328-29. The court had no occasion to address the type of “specifics” that require a more exacting analysis under Fifth Circuit law. Little, 690 F.3d at 293. 3. This Court’s opinion in Ocwen does not support Chase’s position. Chase’s reliance on this Court’s decision in U.S. ex rel. Fisher v. Ocwen Loan Serv., LLC, is misplaced. No. 12-543, 2016 WL 3031713 (E.D. Tex. May 25, 2016). In that case, relators alleged a broad universe of claims, including violations of FHA loss mitigation requirements, FHA quality control requirements, the Dodd-Frank Act (through seventeen different allegedly unlawful practices), the Real Estate Settlement Procedures Act, Regulation Z, and the laws of four states. See Ocwen, Doc. 295 (Fifth Am. Compl.). Thus, the “MHA Program Performance Reports and SIGTARP reports,” Mot. at 22 n.67, “correspond[ed to] the scope and breadth,” Little, 690 F.3d at 293, of the wide-ranging complaint. Put another way, this Court reached the unsurprising conclusion that the public disclosure bar “likely” applied to at least some claims when the complaint alleged that the defendant was generally failing to comply with Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 15 of 28 PageID #: 2103 1692803.1 -11- federal and state lending requirements and there had been public disclosures at the same level of generality. Ocwen, 2016 WL 3031713, at *6. In Ocwen, this Court did not ultimately need to analyze the public disclosure bar closely for each of the many at-issue claims because the Court found it straightforward to determine that all of Relators’ allegations were based on their “independent observations” and thus fell under the “original source” exception regardless of whether there had been a public disclosure at all. Id. at *7. This Court’s decision not to waste judicial resources exhaustively analyzing dozens of claims under the public disclosure bar when it was clear that the “original source” exception applied to all of the claims does not somehow stand for the proposition that the public disclosure bar is evaluated for the entire complaint, rather than claim-by-claim. Here, Relators have alleged four specific, distinct theories of fraud, wholly opposite of the claims at issue in Ocwen. Rather than the generalized allegations in Ocwen, this is a case in which “specifics are alleged,” Little, 690 F.3d at 293, thus mandating a more granular, fraud-by-fraud approach. B. Chase cannot establish public disclosure for two of Relators’ claims. The public disclosure bar applies only if Relators’ allegations are “substantially the same,” 31 U.S.C. § 3730(e)(4)(A), as information contained in public disclosures.4 A “guiding query is whether one could have produced the substance of the complaint merely by synthesizing the public disclosures’ description of the scheme,” Little, 690 F.3d at 293 (internal quotation marks omitted), such that the “public papers were all that one would have needed to discover the 4 Although the Fifth Circuit has not yet determined whether the “substantially the same” standard in the post-2010 statute differs from the “based upon” test in the earlier provision, district courts in this circuit have concluded that the difference, if any, would be significant only in the marginal case. See Hendrickson, 343 F. Supp. 3d at 623; U.S. ex rel. Lockey v. City of Dallas, Tex., No. 11-354, 2013 WL 268371, at *13 (N.D. Tex. Jan. 23, 2013). Other circuits, before 2010, had interpreted “based upon” as meaning “substantially similar.” See, e.g., Leveski v. ITT Educ. Servs., Inc., 719 F.3d 818, 828 n.1 (7th Cir. 2013). Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 16 of 28 PageID #: 2104 1692803.1 -12- purported fraud,” Colquitt, 858 F.3d at 374. The required elements for the inference of fraud—“a misrepresented state of facts and a true state of facts”—must be revealed in the public domain. Solomon, 878 F.3d at 144 (citation omitted). The “presence of one or the other in the public domain, but not both, cannot be expected to set government investigators on the trail of fraud.” Id. At the very least, the disclosures must “furnish evidence of the fraudulent scheme alleged.” Little, 690 F.3d at 293. Chase does not (and cannot) make such a showing with respect to Relators’ claims that Chase stole money from homeowners by capitalizing (1) the principal portion of the borrower’s missed payments and (2) anticipated escrow shortages—two independent fraudulent schemes revealed for the first time by Relators. 1. Chase’s disclosures have nothing to do with two of Relators’ claims Chase attached its purported disclosures as Exhibit A to its motion (Doc. 106-1). None of these document the “critical elements,” U.S. ex rel. Colquitt v. Abbott Laboratories, 864 F. Supp. 2d 499, 519 (N.D. Tex. 2012) (citation omitted), or “specific details,” Jamison, 649 F.3d at 329 (citation omitted), of Relators’ claims that Chase improperly capitalized the principal portion of the borrower’s missed payments and anticipated escrow shortages when calculating HAMP modifications. The word “principal” appears a single time in Appendix A, and there only in reference to “principal reduction,” which is not at issue in this case. Doc. 106-1 at 13. The word “escrow” appears not at all. Nothing in Chase’s purported disclosures even mentions how Chase calculated the modification terms: not in the NMS Complaint, NMS Scorecards, or NMS Reports; not in any SIGTARP reports or MHA Servicer Assessments; and not in any new articles. Chase simply does not have a colorable argument that there was public disclosure of Relators’ first two claims. This is particularly so because it is Chase’s burden to demonstrate Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 17 of 28 PageID #: 2105 1692803.1 -13- public disclosure—it cannot meet that burden by throwing every Government report mentioning federal mortgage programs at the wall and hoping something sticks. 2. Chase’s citations do not stand for the position that generalized disclosure of wrongdoing can bar future, specific claims. In contending that the above disclosures somehow bar Relators’ claims, Chase relies principally on the statement in Jamison that the disclosures in that case “set the government on the trail of the fraud.” 649 F.3d at 329 (citation omitted); see Mot. at 19 & 21 n.65. As discussed above, Jamison held that there was public disclosure only because the relator pleaded nothing more than “general allegations of fraud combined with an undifferentiated list of defendants.” Jamison, 649 F.3d at 328. The court expressly found that, had it considered the more specific allegations in the relator’s amended complaint, it would not have found a public disclosure.5 By contrast, Relators’ claims are not general allegations of fraud unlinked to a specific defendant. And Chase cannot credibly contend that Relators somehow could have “produced the substance” of their operative complaint “merely by synthesizing” the material Chase attached to its motion for summary judgment, which does not include the critical details of at least two of Relator’s four independent fraud claims. Jamison, 649 F.3d at 331. Chase also incorrectly relies on Reagan, in which the public disclosures revealed the specific factual “core of [the relator’s] complaint.” 384 F.3d at 172-75. The Reagan relator contended that two healthcare companies were “related entities, so they should not have been reimbursed by Medicare” for certain costs. Id. at 175. A prior Government audit, however, had 5 The court stated that “the defendant’s documents, considered alone, likely are not sufficient publically to disclose allegations specific to” the defendants identified in the relator’s later complaint. Id. at 330. But, the court explained, “we are not examining the public disclosures in the abstract but rather are comparing them to the allegations in Jamison’s original complaint,” which “contained only general allegations” such that the relator “could have produced the substance of the complaint merely by synthesizing the public disclosures’ description of the . . . scheme.” Id. at 330-31. Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 18 of 28 PageID #: 2106 1692803.1 -14- specifically reached an essentially identical conclusion, finding that the entities’ “characterization of the relationship [was] false.” Id. Here, the Government has made no such independent finding about any of the four different fraud claims brought by Relators. The Reagan relator had also previously filed a state court lawsuit asserting “essentially the same allegations at issue in this case,” and she testified that public disclosures obtained via FOIA requests proved her allegations. Id. at 176. Indeed, her “knowledge [was] derived almost entirely from information that ha[d] been publicly disclosed.” Id. at 178. Reagan thus bears no resemblance to Relators’ case against Chase, in which Relators’ testimony is based on their first- hand observations. Similarly, in Stennett v. Premier Rehab., LLC, the allegations were “admittedly based upon[] the publicly disclosed transactions.” 479 F. App’x 631, 635 (5th Cir. 2012) (unpublished). And in U.S. ex rel. Fried v. West Ind. Sch. Dist., the relator brought a single claim—that a school district “had defrauded the Social Security Administration by representing that certain employees were entitled to Social Security benefits when in fact they were not” because they were covered by a separate retirement system. 527 F.3d 439, 440 (5th Cir. 2008). The relator alleged that the school district misrepresented the facts by permitting “retiring teachers to work their last day in a non-teacher position that was covered by Social Security.” Id. at 441. The court held that the claim was barred because “the very essence of the allegations,” namely “the use of the ‘last day’ exemption” had been the subject of government reports and Congressional hearings. Id. at 442. As in Reagan and Stennett, the relator admitted that “a large section of the evidentiary basis of” his claims was “information received pursuant to” Texas’s FOIA statute. Id. II. Relators Are Original Sources Even assuming Chase has a colorable public disclosure claim as to Relators’ other two claims—that Chase engaged in dual tracking and failed to run a compliant HAMP program— Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 19 of 28 PageID #: 2107 1692803.1 -15- summary judgment is still inappropriate because each Relator “is an original source of the information” alleged in the Complaint. 31 U.S.C. § 3730(e)(4)(A). An original source is an individual who either (i) prior to a public disclosure under subsection (e)(4)(a), has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based, or (2) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing an action under this section. 31 U.S.C. § 3730(e)(4)(B). All four of Relators’ fraud allegations against Chase pass muster under subsection (2) of this provision. A. Relators’ knowledge is independent of public documents The Fifth Circuit has held that a relator’s “knowledge is not independent” only if the relator “relies upon the public disclosures at issue.” Colquitt, 858 F.3d at 374; see also Solomon, 878 F.3d at 144. Here, Relators’ knowledge of Chase’s fraud derives from their numerous, independent observations and years of direct experience in the home loan modification process. See Ocwen, 2016 WL 3031713, at *7 (“The information from which Relators’ claims are derived is based upon their independent observations from either their employment within the Defendant companies or from helping individuals obtain home loan modifications from Defendants.”). Relators note that Chase apparently alleges only that Relator Fisher lacks independent knowledge, but this brief discusses each Relator’s personal knowledge out of caution. Relator Fisher learned of the allegations and transactions underlying the complaint through his work assisting borrowers in their efforts to obtain loan modifications. Fisher Decl. ¶¶ 2-5. He personally reviewed hundreds of loan modification contracts and saw how Chase refused to adhere to HAMP guidelines, including its systematic failure to properly disclose what were often times very large balloon payment to borrowers who were desperate to secure a modification. Id. Chase’s comparison of Fisher to the relator in Jamison who asserted Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 20 of 28 PageID #: 2108 1692803.1 -16- indiscriminate allegations against 450 defendants is belied by the fact that Fisher’s allegations against Chase are based on specific Chase-originated modifications. Id. Relators Franklin and McPhaul worked for years in Chase’s Loss Mitigation Department and witnessed firsthand Chase’s double capitalization schemes, dual tracking practices, and overall failure to adhere to the HAMP guidelines. Franklin Decl. ¶¶ 2-4; McPhaul Decl. ¶¶ 2-4. Their detailed personal knowledge comes from studying Chase loan modifications and loan modification worksheets, reviewing the company’s internal correspondence that told underwriters how to calculate homeowners’ unpaid principal balances, and actually underwriting or otherwise monitoring loan modifications. Id As a Single Point of Contact for borrowers, or “SPOC,” Relator Hartfield heard stories of dual tracking directly from homeowners who, while in the modification process, called Hartfield to complain that Chase was proceeding with foreclosure. Hartfield Decl. ¶¶ 2-5. She also witnessed how Chase’s failure to adequately hire and train underwriters negatively impacted homeowners hoping to modify their loans and save their homes. Id. B. Relators’ knowledge adds materially to the publicly disclosed information. To materially add to publicly disclosed information, a relator must “bring something of value to the table.” Colquitt, 858 F.3d at 373; see also U.S. ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294, 306 (3d Cir. 2016) (“‘[M]aterial’ is defined as ‘significant, influential, or relevant.’”). All four Relators provided “relevant” information not present in the public disclosures. Chase does not appear to challenge Relators Franklin, McPhaul, or Hartfield on this basis. Relators Franklin’s and McPhaul’s observations of Chase’s unlawful inflation of principal balances appear nowhere in the public disclosures. Relator Hartfield’s personal observations of distressed homeowners facing foreclosure despite pending modifications, as well Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 21 of 28 PageID #: 2109 1692803.1 -17- as overburdened underwriters, are specific hard proof of misconduct referred to only vaguely in public disclosures. And for all of the bile Chase directs at Michael Fisher, Chase does not identify a single public disclosure that revealed Chase’s willful concealment of massive balloon payments in violation of TILA and that deprived homeowners of an informed decision on their modification options. See, e.g., Ocwen, 2016 WL 3031713, at *7 (finding relators original sources where they provided information based on “direct, first-hand knowledge”). This case is distinguishable from U.S. ex rel. Advocates for Basic Legal Equality, Inc. v. U.S. Bank, 816 F.3d 428 (6th Cir. 2016), which Chase claims is “directly on point.” Mot. at 27. The relator in Basic Legal claimed that the defendant violated the False Claims Act by failing to perform loss mitigation before foreclosing on FHA loans. Id. But prior public disclosures had revealed just that; i.e., the defendant “had failed to take a variety of loss mitigation measures.” Id. at 431. The relators offered nothing more than three examples of homes that did not receive loss mitigation, isolated incidents that were neither “new” nor “significant” when compared to “the thousands of prior problematic foreclosures already disclosed.” Id. at 431–32. Here, Relators allege specific and systemic fraudulent schemes never previously disclosed. C. Relators disclosed their allegations to the Government before filing. All of the allegations made in the Fifth Amended Complaint were “voluntarily provided to the Government before filing.” 31 U.S.C. § 3730(e)(4)(B). Before filing, Relators provided the relevant complaints and disclosure statements to the Government. Boyd Decl. ¶¶ 2-4. In particular: • Relator Fisher served an initial disclosure statement on the Government on September 26, 2013, before filing the Original Complaint without co-relators on September 30, 2013. Id. ¶ 2. • Relators Fisher and Franklin served disclosures on August 28, 2014, before the Second Amended Complaints containing additional claims was filed. Id. ¶ 3. Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 22 of 28 PageID #: 2110 1692803.1 -18- • Relators Hartfield and McPhaul served disclosures on August 28, 2014, id. ¶ 3, prior to filing the Third Amended Complaint (the first to include their allegations) on November 3, 2015. And the Government interviewed Hartfield and McPhaul about their claims before the Third Amended Complaint was filed. Id. ¶4. Chase’s assertion on page 24 of its Motion that Hartfield and McPhaul never submitted a disclosure statement to the government is inaccurate. Chase’s suggestion that Relators cannot qualify as original sources because they failed to properly disclose the information underlying their claims to the Government lacks merit. D. Relators were not required to disclose every allegation to the Government before Mr. Fisher filed the original complaint. Chase contends that the statutory condition that a disclosure be made “before filing an action under this section,” 31 U.S.C. § 3730(e)(4)(B), means that the non-Fisher Relators were required to submit their disclosures before Fisher ever filed the original complaint in this action. Mot. at 22-24. Not so. 1. Chase’s argument contradicts established practice It is commonplace for relators to add new claims and new relators in amended complaints, an established practice that has never been thought to implicate the original source inquiry, even when that question had jurisdictional implications. See, e.g., U.S. ex rel. Precision Co. v. Koch Indus., Inc., 31 F.3d 1015, 1019 (10th Cir. 1994) (holding that a relator cured a public disclosure problem by the addition of additional relators by amendment); U.S. ex rel. LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149 F.3d 227, 230 (3d Cir. 1998) (noting that initial relator was “later joined by” additional relator).6 6 See also, e.g., U.S. ex rel. Boise v. Cephalon, Inc., No. 08-287, 2014 WL 5089671, at *4 (E.D. Pa. Oct. 9, 2014) (approving “the voluntary addition of relators by amended complaint”); U.S. ex rel. Mahoney v. Education Mgmt. Corp., 871 F. Supp. 2d 433, 459 (W.D. Pa. 2012) (same, as to one additional relator); U.S. ex rel. Howard v. Lockheed Martin Corp., No. 99-285, 2011 WL 4348104, at *4 (S.D. Ohio Sept. 16, 2011) (same, as to the addition of two additional relators); cf. U.S. ex rel. Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1166-67 (10th Cir. 2009) Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 23 of 28 PageID #: 2111 1692803.1 -19- 2. Chase’s argument lacks any supporting authority. Given that practical reality, it is unsurprising that Chases cites to exactly zero cases supporting this novel position. Chase brazenly excerpts out of context this Court’s statement in Ocwen that “the only requirement of the original source element relates to when the suit was filed.” 2016 WL 3031713, at *8. In making that statement, the Court rejected a different argument made by the Ocwen defendants that relators were required to disclose their allegations “before the alleged fraud is publicly disclosed.” Id. at *7. Chase fails to mention that in Ocwen itself an amended complaint was filed adding a new relator. Id. at *1 (“The First Amended Complaint incorporated new allegations [and] also added a new relator.”). Chase also wrongly relies on U.S. ex rel. Duxbury v. Ortho Biotech Products, 579 F.3d 13 (1st Cir. 2009). Indeed, this Court specifically rejected the Ocwen defendants’ attempt to use Duxbury in the exact way that Chase attempts to use it here; i.e., as support for the argument “that a relator does not qualify as an original source for the allegations added in an amended complaint and disclosed after the original complaint was filed.” 2016 WL 3031713, at n.7. This Court explained that “the relator [in Duxbury] did not qualify as an original source because he did not bring any new legal causes of action against the defendant and simply added additional supporting facts to the legal causes of action previously made in the original complaint.” Id. This Court distinguished Duxbury on the basis that the relators in Ocwen “brought new allegations in their amended complaints.” Id. Nor does Rockwell, provide any support for the proposition for which Chase cites it. 549 U.S. 457. That case held only that any claim pleaded in an amended complaint must satisfy the public disclosure bar, and the fact that an original complaint is adequate on that score is not alone (holding that the district court did not abuse its discretion in denying leave to amend to add co- relator on the basis of undue delay, but not questioning district court’s jurisdiction to permit amendment). Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 24 of 28 PageID #: 2112 1692803.1 -20- sufficient. Id. at 473. Rockwell does not even suggest that the original source requirement mandates disclosure before the original complaint is filed. Rockwell stated (applying the pre- 2010 bar) that allegations added in an amended complaint can “establish jurisdiction.” Id. The only case Chase cites that has anything to do with its argument is U.S. ex rel. Branch Consultants, LLC v. Allstate Insurance Co., where Judge Vance declined to consider “supplemental disclosures [] made to the government after filing the original complaint but before filing the First Amended Complaint.” 782 F. Supp. 2d 248, 269 (E.D. La. 2011). That case’s reasoning and holding expressly turned on the court’s understanding of public disclosure as a jurisdictional bar, a principle that is no longer the case after 2010. The court acknowledged that the text of the statute did not necessarily preclude supplemental disclosures, but held that “broad principles of jurisdiction” controlled, specifically “[t]he notion that a court cannot proceed if it lacked jurisdiction at the time the original complaint was filed.” Id. at 260. Branch does not apply here because Mr. Fisher’s original complaint did meet the requirements of the public disclosure bar. And in any event, Branch’s reasoning is a dead letter in light of the 2010 amendments to the False Claims Act. 3. The FCA’s use of the word “action” does not support Chase’s argument. For the original source exception to apply, the statute requires that a relator voluntarily disclose his information to the Government “before filing an action” under the False Claims Act. Chase’s argument is nothing more than added emphasis to the word “action.” Then-Judge Alito has explained why this is flat wrong: the False Claims Act is “based on the model of a single- claim complaint,” and it sometimes uses the term “action” when it likely means “claims.” Merena 205 F.3d at 101-02. In full, Judge Alito explained: The statute authorizes a qui tam plaintiff to bring a “civil action for a violation of section 3729,” 31 U.S.C. § 3730(b)(1) (emphasis added), but surely such a plaintiff may bring an action containing multiple claims, each of which alleges a Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 25 of 28 PageID #: 2113 1692803.1 -21- separate violation of section 3729. When a qui tam action is filed, the government may “proceed with the action,” §§ 3730(b)(2) and (4) (emphasis added) or “decline to take over the action,” § 3730(b)(4)(B) (emphasis added), but the government often decides to take over only certain claims in a multi-claim action, and we are aware of no decision holding that this is improper. The statute authorizes the government to “dismiss the action” and “settle the action,” 31 U.S.C. § 3730(c)(2)(A) and (B), but again, we are aware of no decision holding that the government may not settle or dismiss only some of the claims in a multi-claim complaint, and we can think of no reason why the government should not be permitted to do so. Under the “first-to-file” rule of section 3730(b)(5), when a relator “brings an action,” “no other person may ... bring a related action based on the facts underlying the pending action.” But as the District Court's prior rulings in this case illustrate, when it is asserted that a later-filed complaint contains claims that are based on the facts underlying certain claims in a pending multi-count complaint, the court must conduct a claim-by-claim analysis in order to determine if section 3730(b)(5) applies. Section 3730(e), provides that no court shall have jurisdiction over “an action” that falls into one of four categories: (1) “an action” brought by a former or present member of the armed forces against a member of the armed forces arising out the plaintiff's military service, (2) “an action” against a member of Congress or the judiciary or a senior executive branch official if “the action” is based on evidence or information known to the Government, (3) “an action” based upon allegations or transactions that are the subject of a civil suit or certain administrative proceedings to which the government is a party, and (4) “an action” based on certain publicly disclosed information (unless the action is brought by the Attorney General or an original source). What happens under these provisions if a relator files a multi-claim suit and some, but not all, of the claims fall into one of these categories? Id. at 102. Chase’s over-emphasis of a single word is no substitute for proper statutory analysis. Conclusion This Court should deny Chase's motion for summary judgment. Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 26 of 28 PageID #: 2114 1692803.1 -22- Dated: February 6, 2019 SUSMAN GODFREY L.L.P. Geoffrey L. Harrison (Bar No. 00785947) gharrison@susmangodfrey.com Shawn L. Raymond (Bar No. 24009236) sraymond@susmangodfrey.com Laranda Moffett Walker (Bar No. 24089943) lwalker@susmangodfrey.com 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 713-651-9366 Telephone 713-654-6666 Facsimile Stephen Shackelford, Jr. (Bar No. 24062998) sshackelford@susmangodfrey.com 1301 Avenue of the Americas, 32nd Floor New York, New York 10019 212-336-8330 Telephone 212-336-8340 Facsimile SANDERS, MOTLEY, YOUNG & GALLARDO, PLLC Roger D. Sanders (Bar No. 17604700) roger.sanders@somlaw.net J. Michael Young (Bar No. 00786465) michael.young@somlaw.net 111 S. Travis Street Sherman, Texas 75090 903-892-9133 Telephone 903-892-4300 Facsimile By: /s/ Jason L. Lichtman LIEFF CABRASER HEIMANN & BERNSTEIN, LLP Jonathan D. Selbin jselbin@lchb.com Jason L. Lichtman jlichtman@lchb.com 250 Hudson Street, 8th Floor New York, NY 10013-1413 212-355-9500 Telephone 212-355-9592 Facsimile Nimish R. Desai ndesai@lchb.com 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 415-956-1000 Telephone 415-956-1008 Facsimile Andrew R. Kaufman akaufman@lchb.com John T. Spragens jspragens@lchb.com 222 2nd Avenue South Suite 1640 Nashville, TN 37201 615-313-9000 Telephone 615-313-9965 Facsimile Counsel for Relators Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 27 of 28 PageID #: 2115 1692803.1 -23- CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on February 6, 2019 to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3). /s/ Jason L. Lichtman Case 4:16-cv-00395-ALM Document 117 Filed 02/06/19 Page 28 of 28 PageID #: 2116