appreciate the opportunity to speak with you today as this is important case concerning the application of a variety of provisions of the false claims act and act that serves the united states in defending against fraud being committed by case concerns allegations of systemic fraud by key point government solutions in the performance of background security clearance investigations for the united states these concerns or problems raise concerns fraud which the company ignored and then eventually terminated her as a result of bringing these matters to their attention the rule in this case that the company key point would like the court to endorse is a rule that would provide for sweeping application of the public disclosure bar far exceeding the plain language of the statute and the intent of congress the public disclosure bar and the original source status issues are the two most prominent issues in this appeal with respect to the application of the public disclosure bar on i think this court will find on review of the record that substantially the same allegations or transactions as alleged by the relator were not publicly disclosed in the materials that are relied upon by the district court and are we speaking then of detail added to the general allegation these background checks were not being carefully and fully done as required i am speaking to that your honor but it's more than just detail it's actual different fraud seems between what was in the publicly disclosed information versus what was occurring actually point like it was an example so for example what ms read on uncovered and reported within the company and then later to the united states government was the fact that the company would systemically avoid it here into the telephone testimony protocol which is one of the protocols that's required to be observed by the o p m investigators can block that protocol requires that there are only limited circumstances under which a source that's that's being investigated or or discussed in terms of investigation where that source can be contacted by telephone in the reason of course for that kind of a protocol is that you want your investigators to be able to see people and in most instances i had to deal of value wait their credibility as well as the credibility of the information they're providing so the ridge routine violation of that  requirements which is misread brought to the attention of the company and we have outlined or misread is as disclosed in her second many complaints over one hundred forty instances of that violation including identifying specific investigators and time these events are taking place and so forth so that that's one example another if it were communicating by telephone yes they were not supposed to be communicating by telephone but they were in order to speed up the process of conducting the investigation because the whole focus for the company is to produce a report of investigation as quickly as possible and submit it for print and that effort drove down the quality and drove the company toward fraud rather than ensuring that the quality of the bad a geisha is that were being done was met to o p m standards even if that telephonic protocol materially added to the information therefore going towards the original source i'm stuck and why that would really matter for purposes of whether the public disclosure bar would apply to begin with in physical or since we have language in our cases talking about  on the trail of fraud i mean the reality is what you have is a three or four into these in this case that are involved in this activity i mean i mean that are involved in doing these background so you have four you have four into these involved in doing background you have allegations that they're doing that there are essentially short shrift in the government on doing these background why would it even be conceivable that in that the government would be guilty of gross negligence if they didn't knock on the door of key point eventually and say you know what do you do when in fact they did congress and key point may have denied it but that didn't mean that they didn't knock on the door and they would not have continued to knock on that door so on the public disclosure bar i don't get well your honor the point of of concern that we have with the application of the public disclosure of our here is that the publicly disclosed information is not substantially the same with respect to the variety of information that's relied upon by the district court and by key points let me start with for example the two thousand and seven through two thousand and thirteen prosecutions of individual investigators right those prosecutions only involve those investigators did not implicate investigators work for the companies obviously the companies aren't doing the adequate background checks well there's a difference your honor between doing an adequate background check and making a mistake as opposed to engaging in a systemic fraud or one of the community employees the key point for you right mr abraham was not a key point employed as an employee of croll which was it and the allegation is that whole later became key point argument services i don't know that that's actually correct i believe the cole continued as a separate entity but that technicality aside let's look at this draper hims case the tree branch case concerns problems with his investigations or false statements associated with his investigation in two thousand and five in two thousand and six having nothing to do with key points and those those false statements concerned not just roll but also to other companies that he worked for at the time so the government was pursuing him because he was apparently committing fraud in a number of places that he worked well that's one data point we're talking once the data points start adding up that that's the issue i mean we've got the one invested the newspaper story focused on primarily that we have a problem with background check and that's a geisha is because there are a lot of them there they make mistakes there are issues of that nature and congress and others are always concerned about being able to process people through proper you know fairly efficient associated with a company is when the united states investigation services case was unsealed and that was unsealed in the latter part of october twenty thirty well i find a theory that you use the congressional testimony of key point to benefit you interest me that if anything it underscores the fact that you've got a small number of energies there's enough out there that they're going to go out there and they're going to investigate every entity and that means that you know you you that equals trail fraud i mean you you've got fraudulent  to get uses you've got a small number of entities all of the entities are following the same flight book why would what i mean why would it not be logical to say we've got this problem this major problem with this one company that we don't have any problems with any of the other companies and the point of the of the inquiries in the congressional hearings and such was to discuss not to separate fraud by the other companies but what can we do to make the process better the congressional hearings that you're referring to that are in the record with respect to are referred to by the district court with respect to the so called public disclosure of this information is really not about fraud it's about how do we ensure the quality control what  had we make it better they're going in in part then assuming that things are bad as they presently are doing while you're having the discussion about how can we can make them better right you assume but you don't assume fraud the how they're doing it yeah i understand your honor but again the standers is not whether or not there was some you know general opinion out there that there might be fraud going on and somewhere there was no public disclosure that meet it clear in any way or even vaguely referred to key point as engaging in fraud and as your honor as pointed out such holes he points actinides in claims that he was following the letter of the requirements so but it was asked a question in a congressional hearing right it was asked i don't actually i don't know what the question what question was asked because the testimony that we've referred to the court was testimony that was private in writing so i'm not exactly sure what was what was said in the was with the committee of calling that written testimony to address did they address whether they in fact were engaged in fraudulent conduct they didn't specifically as i recall that in specifically addressed fraud one way or the other they simply sa ends and remember your honour's what was going on at that time was there was a lot of concern about what has unfolded with uses so and there were three three things that were going on with his one or two were that of the use case which caused a lot of reporting and other things about ok what are we doing with this system how are we properly monitoring it and so forth but your honour's i submit there's nothing in the record that establishes in any way that key point was engaged in fraud or might be engaged in fraud other than the fact as you point out that they are part of a small circle of companies that were doing this service but if we were to apply that rule  procedures why isn't that enough for the government to say i'm going to find out whether that one over there is up coding to do i mean that's why is that what cases that's not well enough for the public this lawyer and i think we have to look at this from a common sense and practice respective the government get lots of information received lots of information that it could consider investigating it has limited resources three or four companies is what we're talking about but your honor it's not going to go and investigate a company if it doesn't have some more concrete information indicating that there may actually be fraud at issue congress that's for congress inquired in congress or only inquired as to the process and procedures and whether or robert loom we have key point governments impact government facilities you're saying that she's alleging that the point was committing fraud and you're saying the fact the key point was committing fraud in the public domain no your honor we're not i just was wondering what was that she added back into the public domain these hunt and why the facts material and if they are material she's an original source right if they are yours she would be an original source but they are not show her for this reason whether or not a telephone of the original source but you don't with materiality for the new details for example whether or not the individuals conduct themselves leaving aside for a moment whether that constitutes a for all whether or not the quality interviewing in the eye and we are absolutely certain they were speaking the truth and we relied on their statements now isn't that a whole different picture than if you talk to someone on the phone and isn't that a false representation that would be a basis of a fraud suggestion is that these are minor points the reality is o p m by definition made them important made them material o p m is the one who set up protocol o p m the one is that these you know these are the kinds of interviews that you should do th that's not what influences agents is not god dropping and winkelman which i'm looking at right now because the answer is possibly being a material fact was there anywhere in the public domain where there was any suggestion  on in the background of this industry whether the and if that if that were true the original source exception would have no meaning at all because how how under this in the bedroom analogy would would how under that situation what original source need anything if you're with what you're saying is i'm is key point i'm looking at them so all bets always open any fraud the key point would have known about that should be covered in would not be subject to the original source how does that work and in that  material that's not what we're talking about we're talking about a different theory and i am inquiring about original source only that's what this is how that's what we're talking about understood the relay because for three years improperly inaccura and did it talk about who what when where it's want to go majestic you've got a real problem neighbors there's a lot of who what when where and go in the relator complaint that we don't have in the public domain otherwise i disagree or i think the majestic situation and here's why the public disclosures in those cases disclosed that there was company wide company sanctioned fraud in each of those cases that's not the type of public disclosure that we've funds there was no individual issue it was an issue of the organization themselves and that's why the application of those two cases should not be considered in this court's assessment of the issues here that it's unfortunate it was conflated key points argument inflated by the district court and i think it presents a and inappropriate standard for determining if there has been a public disclosure in this case thank you thank you very much