In United States ex rel. Oliver v. Philip Morris USA, Inc., No. 08-0034, 2015 WL 1941578 (D.D.C. Apr. 30, 2015), the district court—applying the 2008 version of the False Claims Act (“FCA”)—found that the relator’s complaint was subject to dismissal due to the public disclosure bar.  At the time the relator filed its complaint, 31 U.S.C. § 3730(e)(4)(A) provided that: No court shall have jurisdiction over an action . . . based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit or investigation, or from the news media, unless . . . the person bringing the action is an original source of the information.

Here, the relator alleged that the defendant violated the FCA by falsely certifying in purchase orders that it was providing the United States military with the best price for its cigarettes.  The purchase orders allegedly required the defendant to provide the United States military with a “most favored customer” (“MFC”) warranty, which the defendant violated by selling cigarettes to civilians overseas at a lower price.

The district court granted the defendant’s first motion to dismiss on the basis that the defendant’s price differential in the cost of cigarettes had previously been discussed in a publicly accessible document and that MFC warranties were “legal requirements that the Government is presumed to know.”  The D.C. Circuit Court vacated the lower court’s opinion, holding that the MFC warranties had not been publicly disclosed.

On remand, the defendant moved to dismiss for a second time, arguing that newly discovered evidence—which was found on a website featuring archived government documents—revealed the terms of the Government’s purchase orders, including the MFC warranties, and therefore, constituted a public disclosure within the meaning of 31 U.S.C. § 3730(e)(4)(A).

The district court agreed with the defendant, holding that the archived documents qualified as “reports” and “news media” under the public disclosure bar.  As to the former, the court explained that “report” has been defined by the Supreme Court to mean “something that gives information or a notification . . . or an official or formal statement of facts or proceedings”  Id. (citing Schindler Elevator Corp. v. United States ex rel. Kirk, 131 S. Ct. 1885, 1892 (2011) (alterations omitted)).  The court held that the archived documents fall within this definition because their purpose is to “give information” and “inform the public” “of the terms and conditions on which” the Government does business.  As to the latter, the court explained that “news media” has repeatedly been extended to non-traditional media outlets and includes information posted online in public searchable databases.  Consequently, the archived documents constituted a public disclosure in this regard as well.