i'm in shreveport louisiana as i said yesterday we have the circuit covered we are in the in bank court room of the john minor wisdom court of appeals billing be awesome so we are treating it have you know kind of a course in your time into these bite size nugget so just be aware that we have read the briefs a little says they are and we're familiar with it you know all this procedural history and so on and so forth so given the bite size instrument increments of time you have you would do well to qana hony inone the pieces that we most need to deal with otherwise you find yourself at a red light and you have to the underlying action the issue of proper party status of course being the briscoe consideration of the framework of this court established in federal coverage services versus united states with respect to whether or not f defendants in addition to be liable proceeds are liable for litigation expenses including attorney's fees and in fact of the procedural posture of this case not only is a proper paid approximately or had on their behalf paid approximately twelve million dollars in proceeds to the state of texas to the united states and to be related to wars which means on the statutory operate of finance but non defended as referred to in that case auditing firms who were essential to understand the nature of the broader scheme at minimum we have done bad but i also think what the same time period you've billing call for the fraud the united states whereas in the nd skin the same hospitals the physicians group a time period using discounted richt to ascend to five participation that is precise regarding the merits of the case st of all that as a nonparty that's nonetheless banned by the district court's denials of its request for attorney's fees but an associates does have the right to appeal it's time we filed its appeal within sixty days sixty days because the government was in intervene or within sixty days from the final order from which it appeals it wasn't obligated to file to appeal the prior order denying it's these under the false claims act without it before there was an entry of its order on the texas same elements of fraud as those previous alleged by cap shop charts i think tend to show the different parties for the most part and there were different parties but brian and went with st file the allegations statutory fees were entitled to recover their fees and we start with that last point about the attorneys in the right to appeal suppose on the point of the end i have four claims against the defendant so i hire three different law firms and i assign one then the merits decision would be the appeal from which the order from which the attorneys would appeal they would appeal to gather it would be one that they would necessarily have to appeal together there's nothing that requires  different parties or different non parties to a fire filed the same appeal multiple parties appeal from just citizens all the time there is nothing in the rules requiring you to file your just get your appeals together in this case our appeal needed not only to be separate from pitt needed to be separate from archons because we requested fees under the t m math p s a and marshawn did not and which are not limited to the texas yes that's true the the texas state law is not really the problem it before this court the issue is that the district court denied attorney's fees under the false claims act and they had to see that the court had to construe the st to file bar under the false claims act as and as modifying the grant of jurisdiction under the false claims act to federal courts over state law causes of action based on the same fac now the problem here is that you have the court had to add ad concepts and limitations to the grant of jurisdiction in order to do that they had to add language when the language was clear they had to add up only the same party can and bringing the state law action the state law cause of action only in the same case may they bring it only at the same time may they bring it and the statute doesn't say that at all it simply doesn't moreover that violates canons of statutory construction that a narrower provision of the same statute governs a broader provision there's a narrow grant of jurisdiction to any state law case based on the same facts as a false claim that case doesn't require him to be in the same case doesn't require it to be the same parties the the st to file bar on the other hand is very broad it says nobody but the federal government can bring an action after over a late brain or intervene in an action after the a st snowfall person had done so based on the same fa court decided that the grant of jurisdiction needed to modify the st to file bar it makes sense under statutory construction it makes sense because we didn't have to add provisions to these it makes sense because it's an exception stay back in the district court while everyone else appeals to file a new application for fees under the texas state law then take a nd appeal and argue not just the texas statute but also the rest of the broader issues basically getting a nd bite at the apple for everything else that the relator and marshawn have already we didn't get a nd bite at the apple we got our one body and that and we have that right under the gentleman case a nonparty has the right to appeal decide to decide the attorneys fees question is whether they were properly dismissed under the st to file rule network and i want to focus my time today on that issue that riding with nd file claim was barred as they related action under the st to file rule because they allege the same material or essential elements of fraud already alleged in the in the shop action if i still have some time i want to address briefly the points under texas law those claims were properly dismissed just the same and then maybe address a few points on tony's fees in the remaining seven minutes michael clarke who represents some of the other affably use is going to address a few remaining issues including the standing issues raised in the recent letter briefs address action is related and therefore barred when it when it alleges the same material or essential elements of fraud and with the court and grants consultant said it is this test is not concerned about whether the  relates or piles on additional details of the same essential claim whether they can marshal additional facts and the reason as the court said in bridge consultants is that once the government knows the essential facts o scheme it has enough information to discover related frauds and that's that there's that term right so congress as a policy decision made a choice that we're not going to let a nd set of or later alleged that white tomorrow in the into teas that they owned and operated falsely certified compliance with the anti kickback statute in order to receive claims for reimbursement from medicare and medicaid so i think it's really important when we're doing this analysis to remember that would be alleged fraud here what we're talking about is a violation of the false claims that what this court has said time and time again the essence of a false claims act in that these services were never provided but both complaints alleged submissions of plans were false because they were legally false in that they were curate in violation of the statute and judge  glad you brought up complaint that i do think it is a useful at least visual example of how these allegations line up and i don't have it in front of me but the one that that i focused on was the one in reimbursement for these hospice and home health services both complaints allege that those claims that arrow if you will was false because it was legally false for curate in violation of the intake statute that's that's the same should that's the same essential element of fraud of a false claim on the government and the fact that riding with alleged different orders of kickback this sort of underline effect that gave rise to that violation s actually think the differences in the underline hit back allegations are pretty similar to the differences that were disregarded by this court in the planned parenthood case now i recognize that's an unpublished decision but yet at the very least of how when people of this court understands the will to work and i think how it should so the court in planned parenthood looked at a set of complaints and the nd one was described as the other complain alleged to planned parenthood submitted reimbursements for for services that were performed but were they used the wrong reimbursement of presumably a higher william berthed now those are different facts at the ground level in one set of claims someone received services and they just used the wrong code in another set of claims there were no services provided all those are different brand level facts but what the court said is that those differences don't matter and here's why  the court said that both complaints essential only allege that the fraud was committed by altering patient records and billing medicaid programs for services other than those winter clothes quote so what the court said is that th details were sufficiently different to take this out of the rubric of a related action under the st to file rule and so i think what's probably most important about that whole thing is that it tells us what we look for in trying to fraud for billing for services other than those render the spike the differences between how those facts actually happened on the ground here the essential false claim allegation is claims for services that work you're in violation act statute those are the same essential claims also say that that the holding in planned parenthood tracked closely with this court's opinion of rich consultants and the holding in branch consultant in a different state right these were different homeowners these were different adjusting firms and i think that point is is interesting from rankings is i think this point directly undercuts the non defendant's piece that the br allegations it's the adjusters who's having who are having to make sort of the ground level misconduct of of misrepresenting what the flood did was but the the addition of these get some adjusting terms were named other adjusting firms one of the addition of the non defendants the didn't take it out of the breach of the st file or what the court said was because these alleged the same material or essential elements of fraud that the nd complaint is part of that's what we have here and also say that branch consultants answers that relate to his argument that they'd spent a lot of time stressing  based on the same material or essential elements of fraud the betting compass is these copycat claims under the texas medicaid fraud prevention under wat connected to a proper claimant of e f c a rights so when when that provision is not inconsistent with applying the st hour rule to say when you've got this state law claim that is attached to a court i'm not convinced that it's powerful enough to bar that plane in texas state court that's the issues that we serve reference and everything but our position is you know yesterday that would be powerful enough particularly when combined when you read it with the supplemental jurisdiction apply because of between these copycat actions in federal court undermines the federal purposes of yes yeah if that happened in texas state court i think we have a horrible road  i'm not ready to say would be a loser around our initial argument which we think is controlling is the no he doesn't before the court at least as to the the back of a final settlement because he was on on the merits or to the extent that he was timely in affecting the appeal on the attorney's order we believe that he can't get there because there is no way that he can demonstrate that he's a prevailing that they have got way aside and some interest to the clock or their term history is but they are there and they are effectively controlling the issue up along with mr marsh wrong on mr boy a person amde by the order from which they're appealing said that this is not a matter of standing under the constitution is not a matter of credentials standing because the party and the person appealing had been injured by the order to kill crime and they were not attempting to bring somebody else's claims or bring a claim that was better addressed by the legislature there are two very different schemes in the caps and in the brain in winston cases caps i had a structural scheme where the defendants took over a bankrupt entity basically  and propped it up by giving them free rands and a free loans loans that were not expected to be paid back they did this st circular arguments the case will be submitted and we'll get it cited so as we can thank you