was that the ultimate remedy provision does not apply when the government elects to intervene in the key tam the government does not defend this holding and even conceive that the intervention decision is not necessarily dispositive d to the a ultimate remedy provision congress wrote the ultimate remedy provision with the broadest possible language specifying that applied notwithstanding the government's intervention decision under subsection b and that it applies to any alternate remedy available and incentivizing the prosecution of those claims included preserving the incentive for the whistleblower by allowing the government flexibility but also guaranteeing the relator a share should the government choose a different proceeding say for any claim i'm just asking you do you think claim means what it's defined to mean a very seven hundred and twenty nine or do you mean it think plain mean something different  given the action within the context of subsection c i think that's what makes the most sense otherwise there would be more specificity from congress if the claim has to be formal formal you about a nother phrase and see five how do you understand the phrase you know that if an alternate remedy is pursued in another proceeding the person initiating the action shall have the same rights in such proceeding as such person would have had if the action had continued under the section right to me that phrase suggests that the action has not continued under this section but of course in in in this case the action did continue ad and resulted in a very substantial remedy so how do you understand that phrase would have had if the action had continued under the section well i have two quick points on that  c a action had been litigated and that's given the forcefulness of the notwithstanding instruction of the beginning of the provision as well as the supreme court's direction in state farm's to not read out relate as rights without explicit language but my  nd point on that is that in this case we have a star you mean if it so a settlement is not in compassed within that phrase is that well in this case neither action continued so i think that's a good correct your honor and in this case it did not continue it settled as soon as it began but but but i would also ask you to consider what would have happened if the government had litigated the  action in this case it doesn't seem conceivable that they would have been able to sustain a parallel f t a action if nothing else because no one artist would not have consented to it and it certainly seems kennedy who was extremely helpful to the government here can recover as long as the claim for recovery is pursued through an alter and mitt romney arises from the same facts that were disclosed by the later what if the government had undertaken a criminal prosecution of the company in this case or an individual in the company relying on all those same facts and obtained criminal fine or later is allowed a share of criminal fines well your honor criminal proceedings raise interesting questions perhaps for other statutory reasons but i'm just asking whether under yo theory right would meet arising out of this same factual that would it wouldn't fit within the alternate remedy here well it would it would fit within just within this provision that we're talking about i'm saying that for us there may be other reasons why it might not be possible for relat a share is your position that related could or could not under our position is that within the f c a proceeding before judge walton if there had been a criminal proceeding that the  ultimate remedy provision would have allowed criminal remedy but there's but but that's but that's what every far away from n p r i don't understand it didn't happen here i'm writing you know had there been presumably not as part of the false claims act but as a parallel action a criminal prosecution is it your position that it produced a fine a substantial fine would miss kennedy have been entitled to of that fine arising out of the exact same facts midcap he could could have moved within vs a proceeding before judge walton certainly for a share of any alternate remedy including certainly a i st asked this question you mentioned that you thought there are other parts of the false claims act that would carve out criminal actions but it sounds like for purposes of this alternate remedy recovery your position is that criminal recover also compass well not necessarily the false claims act i mean the district courts that have looked at this have deferred a little bit but generally generally if the disputes have been over whether a relator has a right to intervene and a criminal action or but putting all that aside that's not an issue in this case for the op purposes of the ultimate remedy provision certainly a criminal recovery would be within that language because otherwise the government could proceed criminally against a ke defendant and render them judgment proof and by the time the relator got to litigate her f c a action the incentive to carry out that action and alert the government the st place would have been destroyed by the by the criminal proceeding but here a government settlement under the food drug and cosmetic act didn't take the place of the later suit and indeed it couldn't have because it wasn't even a progress many the government intervened in the later false claims suit and titled it what's really interesting science  relayed i received a seven million eight hundred thousand dollars share of the proceeds from the district work correctly by being nice that in these circumstances the alternate remedy provision simply doesn't apply we say a fraud claim is that a shorthand for the penalty to the existing hugh tam action but intervenes and it adds claims as it's allowed to do other claims as it's allowed to do let's say through settlement or litigation there's a recovery that's that address the situation and i'm not aware of any cases i'm sorry i didn't mean to put you off i'm not aware of any cases it i think that's the fact pattern but i think the reasoning is the same whether the government brought it in a separate action or brought it in the same action the relator is only and putting aside the f t c a there may there may be other proceedings you know and it rather their criminal proceedings or maybe proceedings under that the tax code there may be a lot of other feeding that that may go in parallel i'm not sure that the government always brings a practical matter always bring them in the thing action not as a practical matter they were brought together and there would be obvious claim preclusion problems if they weren't brought together sense but what do we do with thirty seven dollars d won which defines the relator share as fifteen to twenty five percent of the proceeds of the action or settlement of the claim but action to me reads more broadly than fraud claim the claim but they're not entitled to recovery for claims that they didn't bring themselves and i think you know it's i think congress obviously knew that there may be other proceedings and the government question i have is me for the government to prevail here we don't need to reach we can we can decide i guess either that the f t c action is not an alternative remedy or we could decide that the government's pursuit of the f c a claim renders the alternate remedy provision in a political right we could decide on either one of those grounds for the government to prevail which in your view is a narrower reading i mean there are not very many cases interpret in the f c a and i'm concerned i'm concerned about unintended consequences of a board ruling of this middle a somewhat obscure provision claims act stooped and so to the extent that the government actually pursued the pa claims act suit and settled it the alternate remedy provision doesn't apply and so i think that's probably one of your one of your beatings and the other would be to say that the f d a action is not an all remedy but but the reason it's not an alternate remedy is because it doesn't take the place the past claims  t it's not a broad remedy it's not it's not dealing with allegations of fraud against the government or the submission of claims to the government it's a very different violation of the law and so it doesn't sort of as a matter of law take the ask you some questions about what it would mean for the government to pursue the f c a claim so if the government intervenes but then they proceed with the action but they proceed to dismiss the action within the meaning of the proper claims act and so it wouldn't be now i mean it think it being back in this case there might be circumstances where the government's the methyl could result in an alternate r way or the other if you want to stick it under box a or box b they don't care about the government care because it gets one hundred percent versus seventy five dollars or eighty percent recovery and so what's to stop the government under your theory from doing very small settlements or much smaller settlements of the f c a claim and then using some non expiate type name settlement to put all the real recovery there and to keep the keep him at the keep  don't think we are going to be able to prevail on the standards of fraud here and let's make it you know not quite so transparent what's going on and let's say that one's for a one million dollars the government says you know it's good we're really worried about meeting the standard of proof or fraud which is really hard here sort of mens rea of the knowingly here knowingly as to the falsity so that's why we're selling them and then we're going to go over here at the same time or a week any other remedies it intends to pursue for these same facts before settlements approved i want to be careful here because i think there may be some times when when what the government you think the government has an obligation so the district court can assess the fairness of a settlement or dismissal decision to tell at least a district court if not the relator for some so i think just sort of as a permanent berman of obligation i don't think there's any obligations will i deny that there was some jacked up of the objection as a base on the settlement objections based on i think don't dismiss that i think we can prove our case i mean i guess  i i i misunderstood your your hypothetical and i apologize i mean i think to the extent that a core is then conducting some sort of hearing and and looking at the question whether it is fair adequate and reasonable and i think it it is for the court to you know sort of ask what information it wants from the from the government and to the extent that the court wants to know whether there are other actions and then yes the government probably has a duty to disclose that but i don't want to just for ask be clear about your situation where the the later has objected and just or is looking for information about the case then i think it certainly would be reasonable for the government to  correct here on yes ok so then on judgment let's question i mean i don't think under your a few you wouldn't have to disclose that to the district court because it wouldn't be relevant to the f c a remedy at not even though arguably some of those f t c claims at least sound in something that sounds like fraud to the government they're not f c a claims i mean what exactly is an alternate remedy or what would be included in that category on the government claim but i think the point is that it's still meant to address the same sort of allegations in the same for claim that you grant under the knife what if it wasn't obtaining their f t c approval to market this drug you made commitments to make disclosures and warnings to doctor and maybe warning labels or information with the drug you made commitments and those were false commitments you were never planning to keep them because you don't believe these disclosures really should have to take place and so that's what the administrative proceeding was you wrongfully obtained authorization to market or marketed it improperly because you didn't include the appropriate disclosures and you never intended to government ripples breakdowns as you say that isn't included i think doesn't mean anything in the definition you know i don't i don't know if there would be some theory of liability under the false claims act but that's not that's not the same thing you actually  request from the government is included when your property and i don't think you and i don't want to speculate in terms of whether there would be some theory of liability under false claims i think that the key point here though is that it's not  case where the government puts most of the way on the non so called not f c a claim in most of the recovery there but not so much that it's obvious what's going on and maybe doesn't say a word what protection i think they keep protection is to capital that can't happen if nobody knows what's going on and you are willing to say that there was any obligation to government to be upfront with what reasonable is sort of an independent question the fact that the government me have an action or other claims that are not claims not the sort of thing that you would bring in the false claims that the fact that the government may have other action it's really incumbent upon the point i understand your concern about the shift in proceed and i think if that's the concern then then it's really just that what you're saying is that the settlement under the auspices of the act would not be adequate and reasona that taking into account all the various you know things to consider in the risk of litigation that that still is not what is reasonable and and that's what's the thing really is that to address and i think that's what relator can still can raise your hand and say i don't think th spare and it wouldn't be so i think the government really prove you know has a strong claim they could really prove more and and get a better deal of litigation that we're getting here and i think later to do that whether the government is ten it alleges a form of fraud a proper practice which is misbranded introducing misbranded drugs there's no additional actual difference between the actions of the defendant in both  same judge with the same department of justice attorneys so well we don't we i disagree with my friend from the government that this is not in any way a form of fraud this is that the congress did not impose any sort of formal fraud requirement on the ultimate remedy that's why it said any alternate remedy notwithstanding the government's decision to intervene and and judge katz as you're completely correct that that this is very unusual thing for the guy for the government to have done separate actions and doesn't let you were discussing that it wasn't related it was not there's no right for the relator to know  negotiations or to get information from the government what's afforded what's afforded the relator is a relator share right and the right to object on just on the right to object i'd also like to point out of the district court has made no findings as to settlement to the drug big toes and it could have been it could have been for any conduct it's certainly not a very strange thinks the government to do so we did to your client inquire quite actually was given notice of another settlement your client i mean again the district court didn't find this didn't address this but the accounts of a relator was told that this was all the government could get from defendant over an artist when i know that you were told there was another action or settlement out there back as far as i know there was no communication about this with the district court and in fact the district court wasn't aware of the f t c action at all until it was filed in the district court on september th four days after  yes the government has many remedies and many many possible actions against pharmaceutical companies and this could have been for any for a for unrelated conduct and it given the unusual structure of the settlements that's what would have made sense