thanks very much counsel good to see we've got i see one counsel here who will see who i have somebody on by you tube who's on all right well we're we're ready to call this case we've you know we've had the matter up been over to the delaware supreme court and now back to us mr gysin to go ahead is intervention right then and this is not like in bank where we're going to give you five minutes uninterrupted we've got plenty of questions and we've all read the briefs and we've read the supplemental briefs so i'm just going to dive in with with judge wilson dismisses as a jurisdictional matter under twelve b one has she done this on the public disclosure bar there is this statute specific it's jurisdiction stripping st to file bar which is the dismissal you know that might seem a distinction without a difference in this case nobody's wilkinson go outside the four corners of the complaint as far as i can tell so you know whether this is a facial or a factual challenge to jurisdiction  isn't an issue but it's nice to know whether we're talking about our own jurisdiction or not so do you have a and i don't maybe catching you and  are without any warning on this but do you have a view on that mr just since your honor i don't think that the rd circuit has directly answered the question is whether it's jurisdictional there's i believe a sort of authority on that question i know certain circuits have d and the logic being that if it were a jurisdictional issue that doesn't then that that reasoning wouldn't make sense but but your honor i confess this is not something i've studied closely and would be happy to   point it out i'm not sure that it would make a difference ultimately i mean it at the end of the day the court can you know if it is a good if it whether they get it you know whether we're doing it right or  not yeah i don't want to be i don't want to be using a wrench when we s'posed views in a screwdriver so tell us what tool we're supposed to be operating with no be happy to hear that from both of all right with that out of the way you've got a volunteer you have been in effect a substitution under twenty five c that's not a new party coming in in the same way as a joint and therefore the st to file or doesn't affect that and their response is look if that were the case then you could just endlessly have relayed hers coming in and substituting themselves and saying hey i'm not joining in i'm just taken over and that can't be right what's your response to that well i think what's interesting your honor is that if if we were an entity partnership then i don't believe the defendants would dispute that the members of that partnership would be free to change all of them would be free to change and that would not you're not well i understand your honor but when i think we need to address the court's question about about the issue of  additional individuals coming in taking interest or control of the litigation is really you know there's really no difference analytically we know that we know that corporations and l c s and partnerships of any kind are persons within the meaning of the  and they are allowed to bring these cases and all of those types of entities have membership changes it's going to change the composition of who's in control of the litigation so the you know there's really no different well know there is a difference the difference is you're not a partnership not a corporation you're not an entity partnership i mean i think i understand your argument is if corporations can do it why can't we because it doesn't implicate the policies of the st to file rule but you've just  it almost sounds like you're trying to re argue the delaware supreme court point and say hey we're just the partnership the changes so membership so what well the so what is the old partnerships gone you made a choice the district court pegged us having done it for a strategic reason so you could avoid the public disclosure issues and be an original you know source of original information but you made your bed you got a lion it now you've got a different partnership so the  answer i don't see advancing the argument by saying we're just like an l l c or a corporation doesn't implicate the issues there but her assertion is it does implicate the issue because under your logic people could could substitute themselves under twenty five c or seek to do that and that would defeat the st to file a rule that's what i'm trying to get you to answer i understand your honor and so let me move on that point although i think it's a valid one but the  reality in this case is that we're not talking about somebody substituting itself we're talking about two partners who joined a rd partner and we understand that under delaware law that that caused effectuated to change the partnership but the new partnership stand in the shoes of its predecessor and i don't think that there's any there's any bar to to to relate or you know partnership bringing action and and changing shape during the pendency the action and then allowing its successor to stand issues that it's not that that doesn't implicate the policy concern of having sort of multiple successes for later is because they're all standing in the shoes of the original lead again a successor does not bring itself to the table  said that doesn't matter here because you're not really a party that original your predecessor did and you are bound by that because you're standing in that predecessor shoes and i think that's exactly the case here that really isn't the policy concern of having you know successive new relator is because ultimately we're one relator it's just that now we have a new partnership arguello or a law that is standing in the shoes of the original relator in this case then why do you have to why do you have to have an assignment because if it just were happening automatically why is there the mississippi of you delivering over some document that says and we are giving you our litigation we're really not sure that there was a necessity for that i mean i think w partnership agreement that allowed for membership change and said the partnership doesn't dissolve so so that there they were not thinking about transferring assets from one party or another that the delaware spring board observed in its decision that perhaps the crucial question is whether litigation as had transferred and with that in mind you know the partners here who wanted to make sure that their claim could continue said well that's make sure that that's what happened and so i think you know whether it happened that a fact question or a was in other words are you telling us because i'm a little confused here if you're if your assertion is this happened by operation of law just happened when when the new partners came in and the dissolution of her in the new partnership stood in the shoes of the old everything that the old partnership had became the new partnerships debts assets the whole she bang lock stock and barrel and there was no need to transfer anything because it just happened well then that's one assertion but if you're saying you know in order to affect these kinds of thing there has to be a transfer of assets and that's a factual question right are we dealing with the question of fact whether you transferred it or are we dealing with the question of law that know and that's what i want to get to it doesn't and i think the defense contends that it doesn't also here's why this was this was decided on a motion to dismiss for the where the district judge reading the nd amanda complaint came to the conclusion that the st partnership had handed off  litigation to the nd so that was really the basis for the court's decision and so we're operating the universe for that that that is a fact that the court essentially assumed to be true for purposes of the decision as to what would happen here now and now alternately the answer as to whether that that is correct actually or not is really beside the point because i think it can happen the point is that that the original the original partnership can transfer the if it didn't happen the real partnership can transfer to the new partnership as it's intended to do by the partnership continuation agreement and so and so whether whether we're inferring it from the nd amendment claim whether happen by recent law or whether it was effectuated by that that the subsequently executed person transfer agreement really is beside the point because it was the the basis for the court's conclusion that there now was a nd partnership that was in the case if if if the nd complement of partners did not have that asset then on our time now it's an account against to judge yes i have a couple of questions the st one is if this is your position is that limited to fuel twenty four intervention talked in role policy terms but how does that square with the statute that has to be doing something here what's it doing on your well on this that uses the term intervene i think for me i think when we target statutes  joined by way of an american plane or if the court adds or drops a party if there's a substitution we would never call those interveners i mean it's just it's not the term that would be used because we think of intervention as what it is which is that the right of a rd party to come in and  intervene in the case in the procedural device that's used for that is rule twenty four in the ordinary case now that is not to say that it is not possible through the answer of the district court's interpretation  that was the question before it and the court said we know the united states was not a party because the way that the united states becomes a party under the false claims act it intervenes it has an enemy it's not a party were done it wasn't interpretating the term intervention in any way and certainly wasn't interpreted the term intervention to mean that anytime a party is in any way joined to a case by way of example by amendment or substitution that that constitutes intervention in any because i think when you have a true stranger to litigation show up who has actually no right to be there they have no they aren't a success or the original relator has not added them and they purport to file a pleading  they're just they're trying to me now i think the answer is they may not do that when you have to file a motion for leave to intervene on the rule twenty four and a half be granted so i think analytically somebody who does that really is not in the case at all they're not a part of the not to do party they're just a complete stranger still  because they have made a choice and two to essentially strengthen the case by bringing somebody else on board or that they by necessity need somebody else to continue the case for d them for example in the case of the death of a regional re intervene or bring a related action what it what it what do what does the statutory language mean when it says bring related actions that mean only bring a new complaint or does that mean in some form or fashion other than bringing  filing a new action show up and start litigating like as a successor in interest i don't think it says that it says bringing related action i think action has a common understanding within  token somebody can come along and say i will rather than file a new and different action on i'm going to try to work my way into your action and they can't do that either but that's not what neither of us think happened here ok now so a question about the procedural thicket let's assume we agree with you on the rule twenty four to it ever the delo or supreme court's made clear we're supposed this is basically an aggregate partnerships it's complicated it's not neatly one of the other but it's more aggregate than anything else so why are we even talking about the partnership here weren't we just focusing on there were three partners and now we have a different three partners here why are we just addressing this in terms of the rights the individual partners as the people behind this who are who are bringing it and if we analyze it that way isn't it relevant that we now have a rd person explanations for this therefore is not the undisputed record clear that the nd amendment partnership filed the nd amended complaint and it is the nd partnership as the relate or not  way you can look through the partners are because you do have an interesting partnership now having said that on the other hand again going back to what the nd amended complaint says that st i would say the partners obviously didn't understand that they were creating new partnerships so the allegation in the in the in the nd many complain is that the relator is the same as j k j but there's been a change in membership at least that's the inference and now we know the dollars told us that that those are technically two different partnerships so i understand that the question  at the defendant's urging that that the litigation was handed off the defendants have consistently taken that position before this court and we're going with it at this point based on what that were said you know if it's if the court's going to draw the inference then we've offered to some of the record with a with a a an agreement that that affects us that transfer but either way this missile was not warned in this case and we should we should go back and proceed i have no further so i'm not aware of a circumstance of a government given the statute requires and it has a minimum amount of of a percentage that would be shared by the related now to the extent there's a dispute between the relator and the government over the amount of that charities result in the context of the underlying false claims proceeding is not of the sever claim against the government and in fact i'm not aware that the government is way sovereign immunity to bring a claim against the government under the false claims that so i think this i mean if you know we this is a matter we could refer to as well but i don't think that there i don't and the judgment in those sorts of cases is not a judgment against the government might be formed in the in the under the caption of the original action but it's it's a judgment that the government has to satisfy right when there's a dispute over share you know i say it's an interesting question i mean i i think in the end without putting a capital algal in front of it i think in common parlance we would say that yes the government if the government is only the money in the treasury  the government then pay the relator the share as ordered by the board guy it's often the case that it's not it's often the case that the money is held by the defendant or by counsel in escrow or by the court to the extent of dispute i don't i don't think anybody i don't think that that type of situation is understood to be a claim against the government within the meaning of the any sign that the relator has an interest in the proceeds from the defendant and the sharing and the point is that it's not that ultimately you know if it is taking a cut of what's our good morning your honor thank you i suspect i'll be getting a bunch of questions too but i want to start out by pointing out there's an elephant in the room here of that i feel a sometimes lost in these competent things about rule seventeen and rule twenty five and that is that route seventeen and route twenty five are really caption change mechanisms when everything stays the same you can substitute in a new caption that is not what's happened here at all and if you look at the way just looks and described it i think this is completely accurate judy caging was a partnership of a b and c alleged to possess their knowledge and proceed with their legal rights j k j became a delaware supreme court an opinion it tells us on balance we're supposed to be treating this as the rights of a b and c so why isn't the proper way to approach this to look i think it's your honor pointed out in the st part of the argument this is a hybrid partnership it's an aggregate partnership that also contains elements of an entity partnership and is just one example for it's a limited liability partnership  how can you ask to have a both ways that's what you're doing you're saying we wanted to be an entity for not going to doubt but we wanted to be in aggregate for the purposes of saying there was a transfer the supreme court answered the question this is an aggregate entity now operate in that sphere you're talking about an aggregate entity and employees answer what judge b b c is asking i don't think it helps to go back and say yeah but for this purpose it's an entity  this aggregate partnership that elements of an entity partnership one last a limited liability and two was the fact that they gave their claims to the partners but i'll tell you why it matters in another respect and notice it to another respect because what the partners did was they created an ogre related really that had the combined knowledge of these three individual partners and so when one partner takes his ball and goes fall and remember that original complaint was  alleged personal knowledge it wasn't information and believe complain that you sometimes see in these key towns so when one partner takes his ball and goes home and quits the partnership it's not so easy to say that the new that sounds to me like i'm saying is there ought to be some fact finding to decide whether what partner be brought to the table is essential to the to the allegations of the complaint than without a partner be they can't make those allegation no i don't think so i think you can presume that they joined that partnership together to litigate the aggregate knowledge of those three partners and i think it would be a stretch to then presume that if one falls out that the same way the relator is talking about this case is that it's wavered like lawrence oh are you are you saying are you saying that the new partner they came in it's really all his stuff that that dominates the nd amended complaint and without him they would have made those claims i think it was a do over i think that they i think maybe the dr venter you know we don't know exactly why but it's clear a ton of allegations came out when dr vent you don't quit and they decided they would try and do all very well the new combination that included dr ball and yes six years after the fact they did try to make dr grove all the the new hero of this item much more ok let's say you're right why isn't this a rule fifteen issue for the district to decide what's within the proper bounds of amendment and what point this goes beyond a proper amendment by the original a n c i mean that that doesn't sound like it's an issue for us that sounds like it's a very fact specific issue for the district court why should we kick this back to the district court sort that out well i don't think there's anything to sort out your honor i think just as your honor pointed out  parts having made that decision and they need to be able to live by it and fact i would submit to your honor that in many respects this case is actually more akin to a lot clark than it is to some of the cases that have been the strange to hear you say on the one side and indeed having one point that this is not for purposes of delaware law this entity is really an entity  that has to be viewed as three individuals looking to do something jointly but it's not an entity that stands on its own that provision of the of the partners that we met that said yeah we'll continue on despite a change in partners is a no would be because they chose not they chose to opt out of the entity form and in and to adopt an aggregate form so having won the point and said it's an it's really just three individuals operating under one name and it's not a separate entity how could how can you keep resorting to the fact that it's operating that the three are operating together as a basis for saying now ignore the rights of the two that were there all along because that's what you're saying that if you can pay attention to those three dollars when it comes to whether or not the partnership exists or changed but then you ignore their existence and focus only on the entity when we get to the issues you like how does that work as a legal matter was that air yeah so a st point your honor is footnote sixty nine of the delaware spring court's decision that said this was a hybrid partnership that included elements of aggregate and to play number two is if you look at the th circuit's decision and the jensen chase that you cited there was a very similar issue where they related it was claiming well it was a limited liability company and i'm the sole shareholder and the court rely exclusively on the fact that there was there it was limited liability just like in this case to say no there are different people i don't think it matters what the particular characteristics were of the partnership the fact of the matter is they created a relator that had those come characteristics and they're stuck with that and i don't think they're going to do over to tear them apart nor do i think it would be fair because i think what really happened here is they were trying to do over six years after a fact which is more a qantas filing a related action with a new group of people and they couldn't proceed with those st few allegations because they didn't they didn't even try to what dr levy says a question if my colleagues want to stay on this kind of procedural thicket and i'm ok with that but i would like us to have some time to talk about  the the successor in interest is the a state of b would you say a new partnership different different entity it's all just this that still or supreme court done could they proceed no i don't think that because they're there because i wonder why should i go i understand you've got that bind thing you can't have you know what this sum is greater than the parts i got it that's why i'm asking the question the way i'm asking it partners no eyes and there's a successor in interest by operation of law i think that would be a different situation and that might be acceptable ok their assertion is you don't have to die to do that it's still the same we've got an operation of  didn't think j k j steps into the shoes of the old new steps into the shoes of old white why isn't that operation of law just as much as a dead person successor in interest because that's not what happened here  the poor are asked about you i've never seen a case where the new entity that substituting incessant when i have a whole new set of facts it's a caption change you don't get to do that under rule seventeen and rule twenty five so this is not so i think the related or is positing a case that doesn't exist here so a gotcha it's to make what i think this brings me to my case which is i was shocked by your answer to judge jordan saying that the death of one partner would take this outside because that's not what the text of the statute says the statute bars or bringing a related action and i do not understand how someone's dying counts as intervening or bringing a related action yet like flies your logic seems to be that any time there's there's something that happens it's that that somehow the partnership goes away well that's good for your client but there's no consistent legal rule that comes out of that well i think  term st to fall apart but this is commonly understood as this statute is trying to keep other people from sticking their noses in from piggybacking from taking the action away that seems like a logical plaintiff's themselves saying i'm going to i'm going to have a follow up on somebody else that's not sticking your nose in that's not bringing a separate action why is that it within the statutory text and purpose yeah so your honor if you look at the statutory text when mr just think it was making his argument he used the phrase stranger to the  times there is nothing in the language of what is commonly known as the st to file provision that reference to strangers or friends of the particular plaintiff that's for something it's just not the statute at all and it's did justice thomas rely on when he was talking about the phrase intervention and i sense today what he cited was a nine hundred and twenty case called roca versus thompson that predated rule twenty four and all and rocha versus thompson when it was described an intervention described it in very broad common law terms all relying on blots large dictionary that talked about a party no talking about related unrelated entering a litigation i don't see how this case is not like that this is let me let me suggest why it is like that right that the verbs let's set aside maybe you to hang a lot on the use of the word reckless but at the moment you're not the word intervene in black's law dictionary and the rest of the discussion in eisenstein is about it's used as an active verb a party a party sticking itself in it's not being used for someone who is being brought in implicated interplay needed some other mechanisms for becoming a party or becoming involved without having taken some action on one's part right so that's the rest of this question eisenstein so i don't see how you can suggest that all of those things are in the year that will twenty four intervention gets at this problem and now we have rule twenty four on the books why should we be reading it beyond that actively sticking your nose into the litigation that's your number one i don't think there's anything in the language about related or unrelated sticking your nose in or invited in so i don't i think that would be an ace language to the statute that's just not there ok let's not let's have the text of the statute tell me possibly be covered your reading seems to suggest all that stuff should come in but the there's no person taking action in those situations we broke it so hard are you finished and yes sorry about  the well i think again when you go back to rocha and black's law dictionary and the general purpose the court could have sent uninvited person through twenty four to put the court didn't do that i think what it was doing was creating  anything to do with the st the file there wasn't the context in which justice thomas and the court were were working they were they were dealing with a whole nother set of questions and they and even if the court might have spoken on that that that too and he's asked you know two or three times where there's an active verb that shows the person doing something to get into the case how is that the and we've got now rule twenty four to cover instances of intervention why would we why would we read into to be what you seem to be asking us to do and that is treated as something which covers all means by which a party a person might become a party to a suit not your i actually engaging to get into the suit but all means by which it might end up in this yeah i took the point about i take the point about it being an act but it also mentions filing a related action and now that also if that's the thing i did it doesn't involve whether it was a friendly interested friendly person or an unfriendly percent and i feel like it would be such a slippery slope to kind of construct a rule that says ok if the person is invited in we're going to let them come in any time because of the st to follow bar you'll have an endless series of an amendments with endless series of people i'll grant you that it was a stranger that came in but what the real leader was saying was very similar to what mr just sent you said i can make i have a better case i can make this case better but what the court said is look at the purpose the structure of the statue it is designed to encourage whistleblowers to come in quickly and it's designed to encourage the government to learn about the fraudulence case is desperate to cuellar changed the government was notified of the purportedly fraudulent s in two thousand and eleven the policies behind the st of october had been satisfied under the false claims act have been satisfied when that happened and what could be the policy of allowing somebody to say oh here i have some great new color to add six years after the fact the government has already done the fix your investigation then then maybe you are we back to the question of whether this ought to be the sort of thing that's handled under rule fifteen is a fact based question to be addressed by the district court in the st instance just the way the delaware supreme court seemed to imply when it said hey there fact based questions here that we can't the answer no i don't think so you want to because i think what the  talking about when it talked about fact based questions was who owns this claim and i don't think you look at that when i understand that's you know i got page twenty eight of that complaint from i mean of the opinion in front of me too but but the point i'm asking you and i think this is was well put by judge beebs earlier is you seem to be arguing hey this is completely new all ball new stuff it's not right it should be allowed to happen that's really isn't that more in the nature of an argument that this is an unfair amendment the rule fifteen argument and it's not really about intervention rule twenty four dollars an addon parties that all it's really hate they just want to do over that's we typically handle that by saying wait a nd you're just adding stuff here that not relate back it's not fair let me i've the same concern to judge jordan maybe i'll put it a slightly different way there's a set or rules under rule fifteen about what relates back and you got very far away from the text of what is a related action but i thought that this was going to come down to that these amendments this is not just a change in the caption these amendments have gone so far substantively that it shouldn't relate back it should really be understood as a distinct action such that it falls within the term related action if that's what we're arguing about why not let the district court take the st crack at it mr shaw so my point your honor wants to respond to the court's question about rule seventeen and related question about rule twenty five i think in answer number one and that is this is not a rule seventeen a rule twenty five issue because it's not the same football it's not a game of who wants the football this is not just a caption changed they did do significant amendments to their complaint that made it fall outside of rule seventeen rule twenty five so i think you are back at it whether a rule really answer the question about why the district court if that's true why shouldn't the district court have the st crack at this that's the question has been positive because that's not what the plaintiffs tried to do here the plaintiffs didn't just try to add something to an existing complaint what they did was they tried to swap out related one with relate or two and they were two different combinations of people two different partnerships so i think you know what for sake of discussion don't you say why don't you just say we're past that ok assume assume we were of a mind to say well maybe they can they could pursue this but maybe they shouldn't be permitted to not because really count as a nd amended complaint if we were if we were thinking that i'm hoping to get should to the point of i mean if we were at that space would you say we would still be in a position to our rule on this is a matter of law were are there factual issues that is questions about what even if they're not factual what questions about what we does and doesn't relate back which are better wrestled with in the district court partnership from a theoretical standpoint to come in at this point and the real question is at that point she has other more fact finding for the judge to do to be able to say mother's complaint comes or goes yes i would say yes all right of discussion that the same thing that was posited to mr agnes water and that the issue now was now that we've sorted out with the help of the delaware supreme court whether we've got a new or an old partnership are we dealing with something which is better thought of and understood as a question about whether something properly relates back on a rule fifteen or amounts to the bringing of a new action and therefore might invoke the st file issues like deal with are and i was i'm sorry that i wasn't getting there quickly enough i think the larger point is that if the new partnership is standing in the shoes of the old then and this isn't about there being a a new there's no new knowledge right here's what i mean by that they we are we are depended upon and would be depend upon the knowledge of the original partnership rights that if you only comes about if there is a public disclosure and we need to invoke the original source exception in the absence of that these original two partners would be free to interview dr val and to learn something from him and to move to include it in their compliance and if that information was not public a the just a court has concluded that it was then they are entitled to do that the argument would be one answer that mr agnivesh wars the search in the witches seems to be directly contrary to what you're saying which is they are only allowed to claim that they were the original source because they had it they were and they chose to do this not as individuals but as an entity taking advantage of limited liability so you can ignore the fact that there is some hybrid ask that this partnership it's not purely an aggregate there is it is got elements of and to be protection associated with that they they pick this and and that the consequence of that is it's a it is an aggregate set of knowledge once you pull some of that knowledge out and stick somebody else in you don't know what you have you can't you can't simply accept that what's wrong with that reasoning so my argument be that if the if the public disclosure of our plot and thus they are later needed to rely upon being an original source of the information i think the defense would have a very good argument as is was just raised that they could not proceed on the basis of knowledge that dr bell brought to the table and that's because you're arguing i hear i understand them to be arguing this nd a many complain it's not just the you know a tightening up of the screw here and another there this is this is a completely new set of allegations and dr bell he's the hero in this one he's the one who's bringing everything to theobald totally different that's the so it's and my understand and i think it's an important point and i'm trying to trying to answer your question there is if in the absence of there being public disclosure then the knowledge that basis for the knowledge of the allegations in the complaint is irrelevant so the fact that new allegations have been have been brought in the nd that a complaint which we will accept is true for purposes of argument came from dr bell in the absence of public disclosure it doesn't matter if dr about the need to be a party he could be in a rd person who picked up the phone and called the two original related as you only get to the the knowledge of the or later ok thank you i understand my time is up if there were any questions to be happy to answer them but otherwise i'll conclude