conspired to misappropriate federal funds under federal medical payment programs and actually the state medical programs as well were here as similar to the last case on a motion to dismiss this was a case that was dismissed  outright without any chance to replete this is the third amended complaint although actually the prior amendments the complaint is as you probably know was filed under seal the first and second amendments were both done under seal before any sort of motion had been filed ted state law claims and the third amendment complaint was filed voluntarily before the motions to dismiss were filed her issue in this case with the court's permission i'm going to focus on the real merits of this there's a lot of argument about which statute should apply frankly i think at the end of the day it doesn't really matter and the reason it doesn't matter is because mr booking a satisfies both the public disclosure both avoids the public disclosure bar and constitutes an original source if that's hard to apply that would allow his claim the public disclosure of our basically prevents a party from serving as a parasite and relying upon some sort of public disclosure taso see compensation to seek the bounty that is providing a false claims act case and so we look to see whether or not th substantial relationship between the allegations in the public disclosure and in the case that's being brought by the new relator in this particular case the original cases the mason case which we have it was publicly disclosed the mason case was a settlement only against med was not a party to that case in fact there are two hundred eighty entities listed in the mason complaint in the operative second amended masing complaint none of those two hundred eighty entities are to terror entities and fact as best as we can tell none of those two hundred eighty entities are actually nursing homes and the reason that's important is because one of the things that that's at issue here is we believe the mason complaint in fact the the release language in the mason case indicates that it was a medicare part a and medicaid federally funded settlement only that related to hospitals to skilled nursing facilities and certain other health providers but did not relate to the non skilled nursing portion of nursing homes to terrorist self is a nursing home operator it operates about one hundred forty nursing homes presumably some portion of these nursing homes would be skilled nursing facility beds but probably a very small portion the court may be familiar that often in a nursing home will have different levels of care that a person may progress through the reimbursements it would be sought for most of these beds would be under medicare part b which is a very different program than medicare part a and i specifically want to focus on one aspect of the medicare part a that is referenced in the covered conduct language of the mason settlement because that's not present in the in the programs that mr booking has brought fraud claims under under medicare part a one of the things they provider has to do is to provide an annual report that basically summarizes the benefits that been provided under medicare part a and certain other programs and indicates whether those were appropriate whether there be should be some sort of adjustment in medicare part d which is primarily a fee for service or fee for product program there's no annual filing made and in fact the release language or the release language of the mason case specifically indicates that it covers only cover conduct and on the second page of that release it defines cover conduct to say in part health care providers who were identified in the second amended complaint the end or who submitted annual cost reports such as form twenty to twenty five fifty two hospital twenty five forty skilled nursing facility one nine hundred eighty four hospice seven hundred twenty eight home health agency and two fifty six reno facility under medicare part a or medicaid the important things that are missing here is we're not mr mccain is not bringing claims related to programs where they were in you will cost report submitted so these claims actually fall outside of the mason settlement entities were not involved at all in the mason case they were not listed at all in fact as far as we know when medline paid the eighty five million dollars settlement they paid in the mason case none of those dollars accounted for the fraud that's that's alleged by mr awful outside of it now i realize eighty five million sounds like a lot of money but realize this was a case that was brought there was no intervention by the federal government and it was settled by medline well is this based  short answer is yes my question is where is the government where medicare well certainly would be aware of the of the reimbursement program where we believe they were unaware of it was that medline in addition to the fraud that was alleged in the mason case which related to  general lines division that there was a second fraud going on that was through the health care company division a separate division and dealt with the medicare part b so when the federal government settled part of the claim they only settled one b unaware of the medicare that that line was involved in medicare to answer your question again i think they were probably aware that medline was receiving reimbursements under all sorts of programs well then why would it why would it single out the settlement the mason case only brought claims under parte why because mr mason only had knowledge as a says an original source or adequate knowledge to make a claim as to the general lines to vision which is where he worked he didn't work in the health care company like he didn't have any information i have a minute alerted to the medicare fraud and knowing that private litigants who did this and they probably lack the information the government certainly could have intervened and broaden the case and if they had we wouldn't have a claim i didn't do so you say the government wasn't in the main mason settlement they had to be involved in approving the settlement mason focused on a single scheme of fraud related to again medicare part a and federally funded medicaid it only related to claims that were that were handled through this annual cost reporting it did not provide a release for the conduct at issue here and there's no indication that anyone looked at to tara or other nursing homes to see what sort of fraud medline may have been engaging in there which brings us to the second point even if there was a public disclosure that was substantially related to the mason case the mason litigation settlement mr bogan it would still be able to proceed with his claims that he was an original source now the definition and we argue a lot about which definition should apply but the definition basically gets down to did he have some sort of independent knowledge that was either direct to him or that substantially added to the public disclosure the building a case focuses on the conduct of two tara which is a nursing home operator as again nursing homes were not involved at all it focused on different programs and particularly important and what the district court seems not to pay much attention to was that in paragraph ninety one of the thirty minute play there's very specific language there indicating that mr poking it again this information through conversations that he was a party to which under levesque he would be sufficient but also through a computer that michael to terence widow gave him but he then did additional investigation so this is someone who independently did investigation akin to what this court found adequate in the city of green bay versus lamers case as being someone who would be an original source so even if we apply the more rigid standard here he came in with specific information that implicated  he brought in information that he had gained through his own conversations through his own investigation this is not a case like last year where he relied upon something told him by his attorneys and he has alleged he was a close confidant a business consultant michael to tara and then again this  private means so this is a situation where he would constitute an original source so even if mason is deemed to be a substantially related public disclosure mr bobino would still be able to proceed as an original source he brought new information he brought new programs that had defrauded he brought new defendant to terra and to terra should not be allowed to escape liability because in the mason case medline settled on a related fraud that medline and gauged with parties other than simply was not involved in that  if there are no further questions i see i'm in my rebuttal time ok thank you ron that's f in all respects because the district court correctly ruled as a matter of law that there had been a prior disclosure of the allegations or transactions upon which were later bogeying a bases its claims and because we're later poky unit is not in the original source of the information upon which the allegations are based now how do we know that as a matter of law well we know it because of what is specifically alleged in the prior mason complaint although mr bo attempts to parse the language that is in the second amended complaint in mason mason alleged that medline in gauged in a conspiracy with all of its customer provided not some of its customer providers but all of its customer providers not just hospital providers not just nursing home providers but all of its customer providers and it said that that medline in gauged in a conspiracy to cause all of its providers to file false cost reports with all federal health care programs it said that they were principly claims and report submitted to medicare and medicaid but he says and specifically alleged in paragraphs nine thirteen and fourteen of his second amended com t that all of the interim and final claims for payment and all cost reports submitted by all medline customer providers were false fraudulent and violated the false claims act all is all there cannot be a broader conspiracy then all there cannot be a deeper conspiracy alleged then all so matt no matter how mr bouck emas briefing an argument attempts to parse this issue mason alleged a pervasive wide and complete conspiracy amongst medline and its customers and therefore there was a pup prior public disclosure relating to medline and all of its customers now keep in mind here that although medline was the only defendant in the mason lawsuit midline does not act in a vacuum that is medline does not submit cost reports and bills to these federal programs by and large instead medline does business with  customer providers who submit cost reports and claims for payment to the various federal programs and so when there are allegations such as there were a mason a settlement as there was in mason it didn't simply just relate to medline activities it related to medline sec to the us with its customer providers who were submitting it would include to tear yes although to tear it is not identified by name they did their mason used a definition a capitalized term yeah and the second amended complaint quote provides an ask the health care providers with whom medline did business and so that's not just hospitals it's not just nursing homes yet  similarly but all that's required for your original source is knowledge that is independent and material to the publicly disclosed allocations s from this circuit iran her where there has been a prior public disclosure that is industry wide or for her face ip then there is not a need to for the prior public disclosure disclosure the case law from this circuit particularly the gear case points out that where there is industry wide fraud and the government has the has the basis to understand the allegation and to investigate then players do not have to be identified that what the statues your honor that's i believe you're referring to the original source prong of the statu yeah ok now what we need to keep in mind is that there are two versions of that original source definition that are in play the pre march twenty three two thousand and ten version and post march twenty three two thousand but i don't see any difference well your honor under the pre march twenty three two thousand and ten version it's required that the relator have direct knowledge that well i don't know  well your honor there's been a number of cases that have attempted to fill out and described the act and it's things that have been seen by the relator as own eyes well that's ridiculous  honor let's take some of the examples from this circuit for example lammers in the city of green bay case was determined that he was an original source because he had direct knowledge because she sat and witnessed the buses going on these bus routes that he contended amounted to a scheme to defraud the voting have direct knowledge of terror no your honor under the specific factual allegations made by mr bouck ina in the third amended complaint that his his fourth effort if pleading because he says that his knowledge is limited to conversations that he had with michael to tara a brother of the joseph two terabits a defendant in this case in two thousand and eight and two thousand and nine and documents provided here is something you don't have to see something well your honor don't tell me that the eyes are the only source of knowledge he did not participate in the skiing or participation the same thing as direct knowledge you can observe without participating but mr bogeying a did not observe the people involved in the scheme e this court determined that it was sufficient where mr le vest b was a ten year employee of the defendant and personally engaged in some of these activities observed your honor anyway i don't i think the new statue is a useful clarification of the old one i don't think there is a consistent i think the new statute explain made your son alleged which he did that medline engaged in this conspiracy with all of its customers and to terror it is one of its customers then there is no materiality to the starts with the hughes case the amendment to the statute is not to be applied retroactively and the amended statute is only to apply to acts alleged to have occurred after the effective date and in this case in order to apply the current definition of original source can relate only to conduct alleged to have occurred after march twenty three two thousand  believes that that those activities continue you can't possibly be the original source if he's making this allegation an information absolutely and under a handful of cases particularly a couple cases decided by  points out that fraud allegations based upon information and belief plead nothing to paraphrase phrase the decision in the brenda dear case where they were when a relator or a  plaintiff contends that backed in a van to occurred but they don't know how they know that the event occurred or that the events continue that's nonsense pleaded and so under all of the claims that are not made on information belief in this case are under the prior statute that require direct knowledge of the transactions and allegations and mr  second or third hand knowledge according to his own allegations  good afternoon your honor says may please the court monica pincer yet for man by i think is an initial matter i just want to jump straight into the original source role and it's our position that bogeyman is not an original source because he lacks direct knowledge of the alleges courts have said that the touchstone of the original source role is to encourage persons with firsthand knowledge of the fraud and those who are either close observers or otherwise involved in the fraud to come forward and this makes sense congress here is intending to limit the number of relator is who can come forward in an instance where there has been a prior public disclosure but gaina is not alleging that he was a close observer of the fraud or otherwise involved in the fro stop working at the terror group in two thousand yes much earlier and but he there are allegations that he did continue to participate and facilitate certain deals involving two terror and medline i  personal specific apps of asians he's relying entirely on the personal observations of someone else who he had a conversation with there's an issue of documents and whether those documents are can sufficiently provide bill gina with direct sense of the sense of bad it's past people's knowledge comes from what they read or from what people tell them correct that's right so your suggesting that you have to have an actual observation  within the specific perspective here that there has been a prior public disclosure congress is demanding more and saying that if there has been a prior public disclosure you've got to come forward with very  can be a very direct source of information about bad things happening and why would you want to exclude that categorically as a basis for false claims because the information is without some element of personal observation whether it's seeing look here it's ridiculous people's knowledge is not limited to what they actually see it includes what they read and what people collateral are correct and if someone confesses in a way that that seems truthful and it's a confession to some serious misconduct  disclosed allegations wouldn't include a confession by to rare that his company's gauged fraudulent activities that may be the case around or that may be the case was there anyone who had any information other than to tear himself like this is what they're saying that this was undisclosed and this was a secret so supposedly you know learn or was not disclosed information that was separate from want to make sure that this is the information that you get from to terror and i guess it will this is i guess you'd say secret nobody ever said anything about it was mason complaint so in a much broader sense these kinds of allegations were the subject of the prior mason litigation which is something that somebody else should have discovered just because it's it's entirely possible it could have been discovered but it ate to my knowledge it was not discovered it's not discovered that it was and it was in the region i think it's now if he's still not a original source again going back to the point about him lacking direct knowledge and to go to a point about luke levesque which relied on certain conversations with direct participants in the fraud i don't think the court was holding there that mere conversations with someone who participates in the fraud somehow converts you into an original source there there were additional factors that were present the allegations in that case were based on the relator stone personal observations she's a was a long time and lawyer he was intimately involved with the transactions that word issue in the allegations which simply is not the case here we have a relying on secondhand information from michael to care so how it is to rarer if it's involved in this fraud ever get certainly the scope of our a the settlement agreement that we've reached only pertains to medline there's there's nothing that we could preclude the government from taking additional action in this case support of her allegations come against i t t comes from conversations to which she was a party for instance in her deposition levesque you make some references to information she learned from other i t t employees but for the most part the best you discuss the statements that were made directly to her by her supervisor at i t t that in and of itself these conversations that mr booking a said he had with michael to care before mr to tara was murdered should suffice that having been said mr to tara doesn't stop there and paragraph ninety one of the the documentation and e s i which is electronically sort of information provided to begin about michael to turn his widow as supplemented by the results of his attorney's investigation attached to the third amended complaint are actually a check that was written that was part of the scheme and several agreements including a walnut creek agreement that related to an entity that was basically created to provide for kickbacks were a bed line purchased part of it is a entity that the two terrorists set up so that they could then receive money through that this is all information that he actually evidences with documents and again as as judge posner has indicated under levesque he conversation should be enough but he doesn't stop there with regard to the public disclosure there were references made to paragraphs nine thirteen and fourteen of the second amended mason complaint talking about all providers and every and something like that being all encompassing but simply not the case providers is a defined term it doesn't say everyone who medline ever sold it's rather talking about the provide the medical providers at issue in that case in paragraphs thirteen and fourteen of the mason complaint there are specific references to entities that submit annual cost reports which again would apply only to medicare part a referencing they start talking about any reports realized that mason didn't know there would be a second lawsuit brought up so he didn't know i shouldn't should leave out the healthcare company's sales he simply said the providers that i know about the fraud which by the way was enough fraud to result in a five million dollar comprehensive the government could have gone broader frankly the government may have even gone broader we don't have any public disclosure of that and without the public disclosure the public disclosure partisan a plot so if the government did all sorts of investigation and never found the terrorists again that doesn't prevent mr big enough or being the first person to bring it forward it's only was there a public disclosure and what we're saying is mason focuses on a medicare party scheme it settles a medicare party scheme it focuses on the general line sales it doesn't talk about the health care company sells it doesn't release those claims how could it be a public disclosure of something that wasn't covered to go back to judge posner's question of this to tear it off on the without any problem does to tear and frankly does medline for the second  they paid a settlement the first one and apparently no one caught them on the second scheme now obviously the schemes are structured somewhat the same they're kickbacks and rebates but that doesn't necessarily mean it's the same scheme the last time and i want to bring up and i apologize i am over time there's a question about information belief and i think one of things that may be important for this court to keep in mind this lawsuit was actually filed in two thousand and eleven it was under seal for a while it was amended it was investigated and finally released so it was frankly not filed too long after the public disclosure parlous modify the information belief language was really just an indication that the fraud that was going on that mr begin to clearly had information about and had independently investigate as he alleged to his knowledge had ended and it shows that the rule ninety pleading standard doesn't fit perfectly in the context of a false claims act case here there's clear allegations what was going on certainly if he's allowed to discovery he may have to amend the complaint he may have to drop anything related to later claims but that should be something he should be