UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

UNITED STATES OF AMERICA and 

THE STATE OF ILLINOIS, 

ex rel. ALAN J. LITWILLER, 

 Plaintiff, 

v. 

OMNICARE, INC., 

 Defendant. 

Civil Action No: 1:11-cv-08980 

Hon. Robert M. Dow, Jr.

OMNICARE, INC.’S MOTION TO DISMISS RELATOR’S COMPLAINT 

 Defendant Omnicare, Inc. (“Omnicare”) by and through its undersigned counsel 

respectfully moves to dismiss Relator’s Complaint dated December 19, 2011 (“Complaint”) 

pursuant to Federal Rules of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, 

12(b)(6), for failure to state a claim upon which relief can be granted, and 9(b), for failure to 

plead fraud with particularity. Omnicare submits the accompanying Memorandum of Law in 

Support of its Motion to Dismiss Relator’s Complaint (“Memorandum”). In support of this 

motion, Omnicare states as follows: 

1. Plaintiff Alan J. Litwiller (“Relator”) filed his Complaint on December 19, 2011 

on behalf of himself, the United States, and the State of Illinois, purporting to bring claims for 

violations of the federal False Claims Act (“FCA”), the Illinois False Claims Act (“IFCA”), and 

the Illinois Insurance Claims Fraud Prevention Act (“IFCPA”). 

2. As explained in the accompanying Memorandum, Relator’s Complaint is legally 

deficient for several independent reasons and should be dismissed. 

3. The Court lacks jurisdiction over certain of Relator’s claims based on the FCA’s 

first-to-file and public disclosure provisions, which bar qui tam actions based on allegations that 

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are the subject of an already pending lawsuit or were publicly disclosed prior to the filing of the 

complaint. As set forth in Omnicare’s Memorandum, certain of Relator’s allegations are the 

subject of a pending lawsuit in the Southern District of Texas, and are therefore barred. 

Similarly, other of Relator’s allegations were publicly disclosed through an investigation by the 

Department of Justice and a prior lawsuit, and because Relator does not qualify as an original 

source of the allegations, those claims are also barred. 

4. Furthermore, Relator has failed to state a claim upon which relief can be granted 

under the FCA because he has not adequately alleged a violation of the anti-kickback laws. 

Because Relator’s allegations to not amount to unlawful remuneration, there is no basis on which 

he can establish liability under the FCA and all of his claims should be dismissed. 

5. Finally, Relator’s fraud claims are not pled with the particularity required by 

Federal Rule of Civil Procedure 9(b). Relator has failed to identify even a single example of any 

false claims that he alleges Omnicare submitted or caused to be submitted, as required by the 

Seventh Circuit. Relator also does not plead his allegations of unlawful remuneration with the 

requisite particularity. For these reasons, Relator’s Complaint should be dismissed in its entirety. 

 WHEREFORE, for the reasons stated above and explained in detail in Omnicare’s 

Memorandum, Omnicare hereby respectfully requests that the Court dismiss Plaintiff’s 

Complaint with prejudice. 

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Dated: September 16, 2013 Respectfully submitted 

Counsel for Defendant Omnicare, Inc. 

__/s/_________________________________ 

Denise M. Ware 

REED SMITH LLP 

10 South Wacker Dr. 

40th Floor 

Chicago, IL 60606 

Telephone: (312) 207-1000 

Facsimile: (312) 207-6400 

Email: dware@reedsmith.com 

 Eric A. Dubelier 

Katherine J. Seikaly 

REED SMITH LLP 

1301 K Street, NW 

Suite 1100 – East Tower 

Washington, D.C. 20005 

Telephone: (202) 414-9200 

Facsimile: (202) 414-9299 

Email: edubelier@reedsmith.com 

Email: kseikaly@reedsmith.com 

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CERTIFICATE OF SERVICE

I hereby certify that on the 16th day of September, 2013, I electronically transmitted the 

attached document to the Clerk’s Office using the CM/ECF System for filing and for transmittal 

of a Notice of Electronic Filing to the following CM/ECF registrants: 

United States Attorney’s Office, NDIL

(usailn.ecfausa@usdoj.gov) 

219 South Dearborn Street 

Suite 500 

Chicago, IL 60604 

Robert H. Smeltzer

rsmeltzer@lowis-gellen.com

200 West Adams Street 

Suite 1900 

Chicago, IL 60606 

 Kevin J. Clancy

kclancy@lowis-gellen.com

200 West Adams Street 

Suite 1900 

Chicago, IL 60606

 ____/s/Kate Seikaly______________________ 

Katherine J. Seikaly 

REED SMITH LLP 

1301 K Street, NW 

Suite 1100 – East Tower 

Washington, D.C. 20005 

Telephone: (202) 414-9200 

Facsimile: (202) 414-9299 

Email: kseikaly@reedsmith.com 

 

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