may please the court the district court erred in dismissing the complaint based on public disclosure board remanding in two thousand and thirteen the court reaffirmed the longstanding test set forth in the siller for when the pre two thousand and ten public disclosure borer is triggered the bar is triggered only when the knowledge of the facts underlying the action the district court found that neither the relator nor their council head gain any relevant knowledge of the for all is alleged in the allegations in their complaint from many of the as a matter of loan this missing the action that didn't siler did we forecast this very factual scenario in a footnote where we suggest that that is an attorney the same attorney was involved in both the predecessor action and the new one you simply glean the same information as a result that that would not be consistent with siler and a different result might obtain the the information they relate or had the gist of the from what the  counsel did her counsel was simply have the same source which was more correct cliff non public information and he used those details from the the information he got through nonpublic sources in filling in some of the details of the complaint the court this report is clear that angela ricklefs knew the gist of the fraud and it was only some details  disclosure there's simply no prohibition for a person learning secondhand from an eyewitness either directly or indirectly the information it's if the information is derived from a public disclosure that the bar plus and the courts been very clear in the tests is very clear the text is very clear it's a prohibition that's not a requirement that a relator have any first hand the final version and then you have a subsequent relator who gets his hands on that draft complaint and never sees the final version of the complaint that was filed and ultimately dismissed for some unrelated reason are you saying that that second relator could bring his own key to my action based soley on reading the draft complaint because under your reading of the statute that would seem to be the result and that can't be right there is that there's no difference between see no difference between that and the relator writing up some of the fraud whether it's used in a complaint or not and the other relator or the other person seeing that and then and then getting the information that way there's a very narrow group of people that will get the information that way versus a public disclosure of their t v on these paper except her and  there's really no public policy reason to to to change the rule to try to cut out those people disqualify them from being related let me take you i think the thrust of judge d s is an initial question which goes to a footnote footnote eight in the salary decision and the court said in the beginning  footnote that it was rejecting the second circuit's test which is basically the post march two thousand and ten statutory provision now then it goes on to say in that particular case that the key tam point of was an attorney who only learned of the pertinent fraud allegations through his representation of a plot whose employer was being investigated for suspected fraudulent actions with the government and this is the key part however under our reading of the statute which we believe is more faithful to the neck to buying which the same result might well obtain it would appear from that footnote that the court was in visioning pretty much your case first of all it says it might it's not a holding in the court but in this case that is not what happened i did not bring the second suit based on filed his case so she knew the fraud the knew about the gist of the for all we drafted the attorneys drafted it and filled in some of the details based on nonpublic information that they had learned earlier what details in this current version of complaint that's different from the previous five or six versions of other than  well there are certain facts that the co relator also include weekly included in that but again if you look at the test this simply does not you have to change the test to to expand disclosures in the public disclosures and in a civil hearing to include the attorney client communications that occur prior to the hearing and and they're saying the proceeding communications badri later that were necessary to effect that public disclosure and that simply doesn't violence to the text of the statute it's not public and it occurred before the civil here so you really do have to change if you take that was simply a footnote in there that was not explored by the court fully to see the four amplifications of it it wasn't necessary in solder and so really when you really look at the ramifications applying it in this situation you have to reject the s and expand it change it and there's simply no public policy reason to do it here you have a relator there's maybe a doctrine where an attorney goes out and finds and they were later off the street that's not all this court in wilson said once you conclude that you have the subject matter jurisdiction stop it down your p and you're done and what happened here is the agree with you then we'd have to agree that there was subject matter jurisdictions now write it all ok this complaint fully complied with rule not be we have exemplars of a specific doctor issuing specific were issued as a result submitted as a result of this interaction with the doctor so my reading of nathan is that you need a false claim we have dozens of false claims that we have nationwide scheme to make this marketing misrepresentation what it's you pass them one physician pardon what you pass the one physician what takes you past one physician that you've a ledge facts  about tens of thousands of others in the country because because the we allege that the misrepresentations that were made that dr word derived from a national training center where they were educating all of the reps to make this one specific misrepresentation and so we had the we said the eye witness more cracked with have been through that and had been educated in that in a nationwide this misrepresentation because they were educating all of these people were were being made throughout the country you say it's possible you know you've only got one allegation one meeting with one doctor now w e this was a nationwide way alleges a nationwide marketing scheme and we sit for specific facts why that is plausible your view is and the key tam action that virtue of making an allegation with respect to the one physician you would if you were allowed to go past year and title to basically go to any physician in alaska that you want i think if you also make the other allegations about this nation want scheme and provide specifics to back that up which we did i think that does provide the adequate allegations for a nationwide scheme thank you may please the court the district court correctly concluded that relator did not carry their burden to establish subject matter jurisdiction under the preachy two thousand and ten version of the public disclosure bar that ruling flowed from several factual findings that the court made after ordering discovery and conducting an evidentiary hearing the court found first that relator is knew nothing about most of the allegations in their old complaint the relevant course of drafting and filing the key ten one complaint on these facts the court concluded that the public disclosure bar was triggered and that conclusion was correct when an attorney who has had an f c a complaint dismissed with prejudiced just goes out and finds new clients who have little or no knowledge about the alleged fraud so that he can file really refile virtually the same complain and thereby circumvent the dismissal you have a quintessential example of what it is that congress intended to foreclose in the public disclosure part all i guess this case is a little bit different because the second row later is has a has a relationship with the first that suggests that he may have gained the knowledge independently of the complaint that sees the argument here and that that's enough to avoid disclosure that is not enough that is not enough under this court's precedent your honor the district court found that angela radcliffe knew some of the details the gist essentially of the allegations in the complaint and stephen may brought some additional knowledge of his own from his time at purdue but that they knew nothing about most of the allegations and the reason i say it's an adequate under this court's precedent your honor and its view rw which was cited in turn in radcliffe to this court's last decision in this case if a if it actually a complaint is based even in part on a prior public disclosure i barred put it another way it is the relator is burden to show that their knowledge of the allegations were based entirely on based on entirely he used a phrase from silent not private information that is not based at all on a public disclosure how do we reconcile sile what this case this is this case is entirely consistent with seiler and counsel said at one point that we have conceded you have to change the silo test we make no such concession we don't agree that's the case siler was about the interpretation of based on this this case is about the interpretation of the term public disclosure and we explained in our brief how our proposed interpretation of public disclosure as encompassing the process we cited dictionary definitions that give that as a definition of disclosure process that lead our definition of proof of disclosure that encompasses the process how our definition does not in any way eviscerate or in any way inconsistent with this court's for example and i think it goes directly to what this court did in radcliff to this court sent it back so that the district court could make findings on whether the allegations in this complaint were based on the prior disclosure the public disclos if the district court had found that all of the allegations in the complaint were were based on for example conversations that angela radcliffe had with mark radcliffe over the dinner table and some other context unrelated to the key ten one disclosure then the allegations under siler complaint under siler would not be based on a prior disclosure even though under the substantially similar test that prevailed in other circuits it would be so our our reading of public disclosure absolutely preserved this court's decision in siler and as you alluded to several of you alluded to judges a g and d as this court previewed admittedly indictive out in footnote eight of siler that this very circumstance would in fact be precluded by the public disclosure bar now of course related disagree with that they say that the what constitutes a parasitic key tim action is where the knowledge has come from a public disclosure they say that's the case law i'm not sure what case law they're referring to said and we quoted on page seventeen of our brief is that in the public disclosure barr quote congress sought to prevent parasitic key tim actions in which were later so now it's going to explain what's a parasitic key to action in avoid the public disclosure bar it's in the district of the district court expressively found that the relator knew nothing about most of the allegations in their complaint so that's a factual finding that i don't believe relator said challenge on appeal and certainly could not be challenge as clearly erroneous in light of the record a district court found yes angela radcliffe knew a little presumably from dinner conversations or the equivalent mark steven may know a little bit again presumably from his work at purdue but the majority of the did not derive any of the information used in the current version of the complaint with these relate or years from the initial redcliffe compl seems an odd finding but that's their factual finding and i don't think you challenge that we have not challenge that factual finding the district court found that the information came counsel's knowledge came from the process of drafting and filing the key to and one complaint rather culminated in what everyone agrees here is a public disclosure the filing of the key ten one complaint so judge a g if those attorney client conversations had happened and they had not culminated in the filing of a complaint surely there would then be no public disclosure you would not have the same problem that you have here but because you have the allegations having been disclosed in again what everyone just agrees is a public disclosure the filing of the key ten one complaint and we're talking about communications that were made  by the original source mark radcliffe of information that was ultimately in the complaint that is was ultimately disclosed and these communications having been made specifically in order to effect that public disclosure we submit should be part of the public disclosure and the i said a moment ago that under siler we regard this as a as a parasitic keeton action united states of course agrees united states whose interests the relator is repeatedly invoking the united states congress intended to prohibit when an act of the public disclosure bar well the government was quite correct in that regard now i just want to address one hypothetical that relates counsel made in the opening argument which was to say for friend tells a  coworker about a fraud the coworkers free to go out and file that the public disclosure bar would not be implicated well that's much closer to the hypothetical i had a minute ago where the attorney client communications happened but there is ultimately no public disclosure in the hypothetical  counsel posited similarly the friend has not first filed his or her own public f c a complain or publish a newspaper article or any of the other sources enumerated in the public disclosure bar before going out and filing because the second row later uncovered the information independently that that was correct and if the relator is here this goes back to the dinner conversations hypothetical if the relatedness here had acquired their knowledge of the fraud completely independently of the public disclosure siler could include the dinner conversations because the allegations would still be substantially similar but in advent the information would not have been learned from the public disclosure that is from from reading the complaint or and or the communications or counsel as we've argued in then you are outside the scope of the public disclosure bar so it goes back to my earlier point your honor that our reading is in fact entirely consistent with  silas reading of based upon and again so say for footnote eight which we submit cuts in our favor this court did not reach the scope of the statutory term public disclosure the reason among the reasons that the term should be interpreted as we suggest is the results that relate or is contrary interpretation would lead to this is one of them we submit that's an indefensible result for the reasons some of the court discussed with counsel in the opening argument the district court noted another one in its opinion saying that a copy editor at a newspaper should not in the course of doing his or her job copy editing an article that was later to be published disclosing fraud copy editor should not be able to take that knowledge then go file his or her own f c a lawsuit involving the same allegations of fraud and claim well i didn't i didn't read the as published newspaper article but under their reading that is the result that would obtain your honour's if the courts have no further questions on public disclosure i will turn to the nine b argument i want to address the points that  council did speak to in ninety but there were i would note at the outset that there was no discussion in the topside argument of either see enter or materiality and at least as to see enter perhaps as not surprising there was no discussion of it in the reply brief very little in the opening brief and all that your honors i submit is because the complaint quite clearly does not adequately allege see enter this court stated in wilson quoted on page forty five of our brief that f c a plaintiffs must allege facts specific facts from which a court can draw an inference of see enter what you take out what we what we think are quite clearly just the conclusory allegations at various points in the complaint that produce new this and produce new that there is exactly one paragraph in the complain produce representatives who allegedly made these allegations to the doctors pointed the doctors that is and again this is all to support their produce new the echo analgesic ratio between oxycontin and s contant was in fact materially lower than closer to zero one point five to one the fact they point to the alleged fact they include in the complaint was that the producer representatives pointed the doctors to an f d a approved package insert in  that insert stated that the ratio was two to one precisely the ratio that the producer representatives allegedly told the doctors ok so that fact i submit by itself clearly could not support in dozens or even even support  the inference that the that the ratio was materially lower than two to one let alone that produce knew it so so so the relator go on to make one further factual allegation which is that the ratio in the f d a approved insert were still in paragraph thirteen was derived from a study of a single dose of the respective drugs thats it ok there is nothing that allows a court to make the leap from there again even to the fact that the ratio was something other than two to one in the chronic pain context let alone that purdue knew it was and again this insert was the f d a had approved this drug only for chronic pain so when it said the ratio is two to want it was instructing patients on how to transition from another drug and this is for example hey jay jay ninety three of the joint appendix is the relevant page of one of the f d a inserts the f d a was saying that in regard to specific context in which this drug had been approved so again there's simply no basis to conclude again even at the insert that the ratio was less than two to one in fact we submit that the court is not required to credit the allegation that it was materially less than two to one in light of the package insert we attach the package inserts to our motion to dismiss and it's interval to the complaint so under this court's precedents that can be considered on  six and that allegation of the ratio being materially less than two to one is refuted by the package insert but even if it weren't there is certainly no basis to conclude that the f d a excuse me that produced having that package insert seeing that package insert would have reason to know did know that the ratio was in fact materially lower in a different context and the failure to let see enter is simply fatal to the entire complain let me turn to materiality if i may i think there's a simple but relatively faith there's a simple but fatal flaw with the manner in which they're related arguing materiality they are suggesting that the materiality test is whether the government in essence would have cared if it had if it had known it had been lied to that is not your honour's the materiality test in fact i submit that would all but read materiality out of the statute because it's difficult to envision a circumstance in which the government would not care if it had been lied to the materiality test is whether the government would have been less likely to pay had it been told the true set of facts rather than the false set of facts in other words a hypothetical well  fact excuse me allegedly false fact was that contractors security guards at an overseas military base had certain training that they could in this course words shoot straight and the court considered whether the whether the government would have paid on the contract and the sub country yes the contract had it instead been troll told that the that the guards could not shoot straight the court quite sensibly concluded that the answer was no even more clearly i submit in the harrison v westinghouse case that the relator is also cite the issue was a certification by a contractor to the government that it had no o c i organizational conflicts of interest and the court explained that statement was material not because as under related test the government would have cared if it had known that i've been lied to rather what the court said was that it was material because quote if westinghouse had not included the no o c i certification in other words if it had told the truth d would not have approved the sub contract that's three fifty two f third at nine sixteen so that is the materiality test and as a result the question is whether the government likely would have refused to pay for oxycontin prescriptions if it had been told the allegedly true fact that is a one point five to one echo analgesic ratio rather than the allegedly false fact two to one ratio there is simply nothing anywhere in the complaint to suggest that the answer to that question is yes there are no criteria point  implausible because what we submitted is evidence showing that government agencies make these sorts of decisions in advance they create these formulary lists and after consulting with physicians insurance companies drug companies and other relevant actors they lay out the criteria in advance for when they will pay on a certain prescription and when they will not and if those criteria are met payment is automatic so that there is no other words no cost sensitivity and the government would not have cared had it been told the allegedly true fact one point five to one rather than the allegedly false fact to one your own as i want to speak very briefly to the points that were addressed on on nine b in the opening argument judge a j you are entirely correct there is nothing there is one prescription claim submission of a prescription claim alleged in the complaint other then those as to dr jarvis and all of those by the way are completely outside at this point the statute of limitations in light of the carter supreme court  case it's clear that the relator can no longer rely on the wartime suspension of limitations act so even if this court were to conclude that the allegations as to dr jarvis were correct and we submit that they should not for this youngster materiality other reasons i can get into there is no basis to allow them to proceed on any further claims there's no basis to conclude that dr jarvis by himself is a representative sample as other courts have required in order to allow this sort of scheme to go forward and of course once the court decides it dr jarvis his own allegations regarding dr jarvis are insufficient then you really are right back into the nathan versus to katie case where the court said it's simply insufficient soley to allege a scheme and then ask the court to infer that false claims were submitted as a result unless you're in the situation where the scheme itself necessarily would have led to the submission of false claims were certainly not in that case here you're because a doctor would have to first credit what the sales representative told him w then make the decision to file the suit to prescribe the drug based on those representations and then would have to submit a claim to a government agency for reimbursement none of that there are too many breaks in the causal chain to conclude that this isn't necessarily le to circumstance your honor unless i want to make sure i understand your argument with respect to reality and cost are you saying that as a general proposition the government would never have been concerned about costs in this  that they were very specific circumstances in which oxycontin could be prescribed for example if patients had shown an inability to tolerate other chronic pain relief drugs but if those criteria are met if  exercise his or her best judgment to indicate that those criteria have been met then indeed yes your honor the government has made the decision in those circumstances where my hypothetical patient will not tolerate other drugs the government is not price sensitive such that the  i'd like to address the materiality issue first what we plead in effect is that the key measurement of how much oxycontin was sold was the units of pain relief and that they misrepresentations in effect were representing that they're providing one third more the quantity than they actually provided we think that that's clear that the government would be concerned about that and would want to adjust the price that they're paying for given these blatant misrepresentations to doctors to hype it to get the doctors to prescribe going back what actual allegations related to see entered you say or in the  authorized to market it for chronic pain and again we can beef up that if we're going well you're on think i'm point number seven nail for this basic same set of facts what what is there and any of these that shows that the producer knew that there was not a two to one ratio because the the  was acute pain study and we say that that's that was not relevant to the effect of quantity that they were providing and this was only the first i'm in the complaint the court has in response to a shortcoming if that is a shortcoming we've never had a chance to do that or didn't and you already amended once after the last appeal we amended one time but not because the court district court told us that our complaint was an adequate we amended through agreement with the finned it's two men we were never told that the complaint was inadequate in any aspect prior to this decision the district court the district court didn't say that it was futile for us to amend on this issue they only said that it that because we could not plead every single all the hundreds of thousands of individual claims that was why the court ruled that it was futile the court did not rule it was futile for us to wear the respect to this issue so i think that at a minimum we should have a chance to amend it that is a shortcoming that the court terms is is a shortcoming going back to the to the public disclosure bar i think it's pretty made it clear that that they are arguing for the district court's basically confusing conflating the underlying information with the public disclosure that information and  the district court could the being clear when it said that the bar was triggered because the information contained in the instant complaint was derived from information that gave rise to the key pam one complaint that's the basis for the court's ruling and that's clearly completely contrary to sol or under their rationale or test you get these absurd results for instance if if the counsel drive one fact indirectly through an eyewitness as opposed through the client then under their argument that the precludes the precludes  the complaint it's simply not there's nowhere insall or that says that prohibits getting secondhand information either directly or indirectly the bar is deriving knowledge from the public disclosure not the underlying information and sound it was absolutely clear in this court was absolutely clear on that and here that the district court findings made it absolutely clear that there was no knowledge that went into the complaint that was derived from the pub from a public disclosure so the court really needs to change the test if it goes produced way to what they're saying is that in these conversations that preceded the public disclosure if anything's dropped from that then then then that the bar plies and again it's a cha from the from up until the time the first complaint is filed there are all these conversations so this would preclude almost any person is not a witness that learns about it through those chains of conversations deriving that knowledge they would be precluded this is simply not what some are ruled on this is does voluntas to the text of the public disclosure bar  where we urge the court is simply to stick with solid and the person i say test of sol are there's not enough also claims that cases are being brought weston a thousand for hundreds of thousands of dollars billions of dollars of fraud and there's no reason for this court to go out of its way and tinker with the test and solider and expand it in a way that really is not justified by the text sept fourth and i think is that was common sense in that case it's common sense in this case if a person is exaggerating the effect of quantity that they're providing to the doctor to medica that's going to be something that is material to the decision maker to pay