United States ex rel. King v. Solvay S.A.

Order

GRAY H. MILLER, District Judge.

Pending before the court are (1) defendants Solvay America Inc. (“SAI”) and Solvay North America LLC’s (“SNA”) motion to dismiss relators John King and Jane Doe’s (collectively, “Relators”) fourth amended complaint (“4AC”) (Dkt. 121); and (2) defendant Abbott Products Inc.’s, which was formerly known as Solvay Pharmaceuticals Inc. (“SPI”), motion to dismiss Relators’ 4AC (Dkt. 122). Having considered the motions and related documents, including the United States’ statement of interest (Dkt. 130), as well as the applicable law, the court is of the opinion that SAI and SNA’s motion to dismiss (Dkt. 121) should be GRANTED IN PART AND DENIED IN PART, and SPI’s motion to dismiss (Dkt. 122) should be GRANTED IN PART AND DENIED IN PART.

I. Background

This case is about a pharmaceutical manufacturer and its affiliates that allegedly made millions of dollars by marketing three drugs — Luvox, Aceon, and AndroGel — for conditions other than the conditions for which the drugs were approved by the Food and Drug Administration *481 (“FDA”) and by offering kickbacks to physicians who prescribed the drugs. Dkt. 114. Relators worked for SPI as district sales managers, and they were responsible for supervising sales representatives who marketed AndroGel, Luvox, and Aceon (collectively, the “Drugs at Issue”). Dkt. 114 at 150; Dkt. 122-2 at 1. Relators claim that their employment was terminated after they questioned the ethics and legality of off-label promotions and kickbacks. Dkt. 114 at 150-57. Relators thereafter brought this qui tarn action against Solvay SA, SAI, SPI, SNA, Solvay Pharmaceuticals SARL, and Abbott Products, Inc., 1 on behalf of the federal government and the States of Illinois, California, Colorado, Florida, Tennessee, Texas, Delaware, Nevada, Louisiana, Hawaii, Georgia, Indiana, Michigan, Montana, New Hampshire, New Jersey, New Mexico, Oklahoma, Rhode Island, Wisconsin, and Maryland, the Commonwealths of Massachusetts and Virginia, and the District of Columbia, asserting claims for violations of the federal False Claims Act (“FCA”), as well as various state versions of those statutes. 2 Dkt. 114 at 171-248. Relators also claim that Solvay conspired with physicians to promote off-label uses of the Drugs at Issue in violation of the FCA and to pay kickbacks in violation of the federal Anti-Kickback Statute (“AKS”). Id. at 169. Finally, Relators contend that Solvay retaliated against them in response to their questioning its marketing schemes by first criticizing Relators and eventually terminating their employment. Id. at 166.

A. Procedural History

On June 10, 2003, Relators filed their original complaint in the Eastern District of Pennsylvania. Dkt. 1. The Relators moved to transfer venue to the Southern District of Texas on June 26, 2006, and the court granted that motion on June 27, 2006. Dkt. 27 (Sealed). Relators filed their first amended complaint on July 15, 2008. Dkt. 38. They filed their second amended complaint on December 7, 2009. Dkt. 54. SAI and SNA filed a motion to dismiss the second amended complaint on March 19, 2010, and SPI filed a motion to dismiss the second amended complaint on the same day. Dkts. 94, 95. Relators moved to amend their complaint, and the court granted that motion and denied the motions to dismiss as moot. Dkts. 99, 102, 104. Relators filed their third amended complaint on September 15, 2010. Dkt. 111. The third amended complaint contains confidential information about physicians who prescribed the Drugs at Issue. Dkts. 112, 113. On September 30, 2010, Relators filed their fourth amended complaint, which is substantially similar to the third amended complaint except that the confidential information has been removed or altered to address the confidentiality concerns. See Dkt. 114.

On December 7, 2010, Abbott and SPI filed a motion to dismiss the 4AC in which *482 they assert (1) the alleged violations of section 3729 of the FCA are insufficiently pled under Rules 8(a), 9(b), and 12(b)(6); (2) the alleged violation of section 3730(h) of the FCA is time-barred and fails to allege facts supporting each element of the cause of action; (3) the state qui tam claims in counts 5-33 are insufficient for the same reasons as the FCA claims and for additional state-specific reasons; and (4) count 34 requests “common fund relief’ against states, which is not a cause of action. Dkt. 122-2.

On November 30, 2011, SAI and SNA filed a motion to dismiss the 4AC in which they argue that the 4AC (1) fails to allege with particularity the roles of SNA and SAI in the alleged misconduct; and (2) fails to plead any facts showing that SNA or SAI engaged in any misconduct or that they exhibited the total control and dominion of SPI that would be required for Relators to state a claim against SNA and SAI for the alleged misconduct of another corporate entity. Dkt. 121-1. SNA and SAI additionally move for dismissal of the claims against them for all of the reasons asserted in SPI’s motion. Id. Both motions request prejudicial dismissal. Dkts. 121-1,122-2.

B. Alleged Off-Label Promotion

Relators contend that Solvay inappropriately marketed the Drugs at Issue for off-label use by (1) encouraging its sales representatives to market the drugs to specifically targeted high Medicaid prescribes who Solvay deemed likely to heavily prescribe the drugs; (2) “shaping the science” through medical literature by paying influential doctors to research and write about the off-label uses that provided the most promise of profit; and (3) influencing physician speakers to promote the drugs off label. Id. at 95-107.

1. Luvox

Luvox, which is the trade name for fluvoxamine, was initially approved by the FDA in 1994 for the treatment of Obsessive Compulsive Disorder (“OCD”). Id. at 26-27. Luvox CR is an extended release version of Luvox. Id. at 30. In 2007, the FDA approved Luvox for the treatment of Social Anxiety Disorder in adults, and it approved Luvox CR for the treatment of both OCD and Social Anxiety Disorder in 2008. Id. at 30-31. Relators contend that Solvay marketed Luvox for use in treating depression, anxiety-related disorders, and other conditions of what Solvay called the “OC Spectrum,” 3 such as stand alone anxiety disorder, Tourette’s syndrome, antisocial personality- disorder, schizo-obsessive disorder, sexual compulsions, and ADHD, even though Luvox was not approved for the treatment of these conditions. Id. at 31. Relators also contend that Solvay downplayed important risks associated with Luvox, including drug interactions, cardiovascular risks in older patients, and an increased risk of mania in children and adolescents. 4 Id. at 43-47. *483 Relators claim that Luvox was a top-selling drug for defendants, with $6 million in Medicaid claims in Texas alone. Relators point to specific physicians in Texas who prescribed Luvox to patients for off-label use after sales representatives “pitched” these uses during sales calls. Id. at 50 & Exh. 18.

2. Aceon

Aceon, which is the trade name for perindopril, is an ACE-inhibitor 5 that was approved by the FDA for the treatment of hypertension (high blood pressure) in 1993. Dkt. 114 at 51. In 2005, the FDA approved the drug for use in treating stable coronary artery disease to reduce the risk of cardiovascular death or myocardial infarction. Id. According to Relators, Solvay promoted Aceon and attempted to distinguish it from numerous ACE inhibitor competitors by claiming, with little or no scientific support, that (1) Aceon delivers a structural change in arteries; (2) Aceon provides 24-hour control with no spikes in blood pressure at the end of the dosing cycle; and (3) Aceon lowers the incidence of secondary strokes. Id. Solvay allegedly advised doctors that Aceon delivered a structural change in arteries, remodeling them, as opposed to merely lowering blood pressure like other ACE inhibitors. 6 Id. at 52. Solvay called this restructuring “arterial wall compliance.” Id. Relators claim that there was no scientific justification for these claims and that nothing in Aceon’s FDA-approved label supports the claims. Id. Solvay also allegedly promoted Aceon by claiming that it provided better blood pressure control than competitors because it did not allow a spike in blood pressure during the latter part of the dosing interval. 7 Id. at 54. Relators claim that no scientific studies support this claim. Id. at 55. Additionally, Solvay allegedly claimed after the completion of the PROGRESS trial that Aceon lowered the incidence of secondary stroke. Id. at 59-60. However, according to Relators, the actual results of the PROGRESS trial indicated that the incidence of secondary strokes was only lowered when a rarely used diuretic, indapamide, was added to Aceon, and that, in fact, there was no indication that Aceon added any synergistic effect to the diuretic. Id. at 59 (citing Exh. 32).

Relators contend that these tactics induced “[ujnsuspecting doctors” to prescribe Aceon instead of other, less expensive drugs. Id. at 61. Relators provide specific examples of doctors who (1) wrote prescriptions for Aceon after attending talks about arterial wall compliance; (2) wrote prescriptions for Aceon to patients with diabetes, allegedly due to the campaign indicating that Aceon provides better blood pressure control at the end of the dosing cycle — which would be especially significant for patients with renal dysfunction related to diabetes; and (3) wrote prescriptions for Aceon for patients with cerebrovascular disease after attending a program on the PROGRESS study that discussed the off-label use of Aceon as a stroke preventative. Id. at 63-65.

*484 3. AndroGel

AndroGel, which is a synthetic testosterone gel, was approved by the FDA in 2000 as being “ ‘indicated for replacement therapy in males for conditions associated with a deficiency or absence of endogenous testosterone’ ” — specifically, primary hypogonadism and hypogonadotropic hypogonadism. 8 Id. at 66 (quoting Exh. 39 (original AndroGel label)). According to Relators, Solvay desired a larger audience for the product, so it formed a strategy to mass market the product for “andropause,” which is “a supposed condition of male aging,” and for “related ailments such as osteoporosis, sexual dysfunction (as a Viagra substitute), and depression, in male patients with both normal and abnormal testosterone levels, with and without clinical symptoms.” Id. at 69. Solvay also allegedly marketed the product for the following off-label uses: “ ‘wasting? in HTV and AIDS patients, women, methadone and other opioid users, diabetics, and those •with ‘metabolic syndrome’ (i.e. obese).” Id. Relators present data indicating that specific Texas physicians have prescribed AndroGel for off-label uses, including pediatric use, use in women and HIV/AIDS patients, and andropause and andropause symptoms (including senile depressive disorder, osteoporosis, and sexual dysfunction), after receiving “detailing” from sales representatives. 9 Id. at 90-94.

Relators contend that the off-label promotion of Luvox, Aceon, and AndroGel resulted in prescriptions that were filled by pharmacies and that the pharmacies then submitted false claims to government health care plans, including Medicare, Medicaid, CHAMPUS/TRICARE, CHAMPVA, Federal Employees Health Benefit Plan, and ADAPs. Id. at 107. Relators assert that Solvay’s drugs were added to state Medicare and Medicaid formularies after listings in DRUGDEX Information System supported the off-label uses, 10 even though (1) the FDA speeifical *485 ly denied approval for some of the off-label uses listed; and (2) many of the sources cited in DRUGDEX in support of the off-label uses (a) failed to support the efficacy of the drugs for the specific uses, (b) were sponsored or authored by defendants or raised another conflict of interest, (c) were from studies that were not subject to peer review, (d) involved too few subjects, (e) lacked controls or had some other research flaw, or (f) were authored by a ghostwriter rather than the listed author. Id. at 108-09. Relators claim that DRUGDEX listed the uses either because it was deliberately mislead by Solvay or colluded with Solvay. Id. at 109.

C. Kickbacks

In addition to the alleged off-label marketing campaign, Relators claim that Solvay “bribed doctors to use its drugs,” for on- and off-label uses, with unlawful kickbacks such as “bogus speaker and research fees, resort weekends, cash payments, or Harley Davidson goods,” in violation of the AKS. Id. at 122. These violations, in turn, allegedly led to the submission by pharmacies and others of false claims to the government for reimbursement for prescriptions. First, Solvay allegedly had several cash schemes whereby it would offer “incentives” to induce physicians to prescribe high volumes of their drugs. Id. at 123. For example, Solvay allegedly would (1) pay doctors to complete paperwork on patients taking Solvay drugs, claiming it was in the interest of furthering medical knowledge; (2) provide honoraria to speakers, including one instance in which Solvay paid one doctor $10,500 in one month to speak to fewer than 50 people about Aceon and a total of more than $100,000 in 2000 for speaking engagements; (3) hold these speaker engagements at upscale venues or luxury resorts; (4) pay for the speakers’ families to attend these lush events; (5) invite doctors from across the country to fly to a luxury hotel or resort to listen to speakers promote defendants’ drugs, paying for airfare, lodging, and an attendance fee, while claiming the physicians were consultants because they were asked to comment on the effectiveness of sales pitches; (6) provide honoraria to physicians who participated in district and regional advisory boards, which were open venues where off-label indications of defendants’ drugs would be discussed; (7) host dinner meetings that ran afoul of the AKS; (8) host Continuing Medical Education (“CME”) dinners of off-label topics and, in the early years, provide physicians with a $100 gift certificate for attending the events; (9) arrange for roundtable dinner meetings (or golf outings) hosted by a regional physician; (10) engage in preceptorships during which a physician allows a sales representative to shadow him or her for part of a day for fees ranging from $150 to $1,000; and (11) provide honoraria or grants for bogus clinical trials, studies, or focus panels. Id. at 123-37.

Solvay also allegedly offered non-cash kickbacks to induce physicians to prescribe its drugs. Examples include the following perks, which allegedly were received by physicians who were willing to listen to a sales pitch or presentation about Solvay’s drugs: Lunch-N-Learn (food from a popular restaurant for the doctor and his or her staff); Dine N’ Dash (free meals for physicians to take home to their families from a popular restaurant); Book-N-Dash (gift certificate to a book store); and Flowers-in-a-Flash (free flowers at a local flower shop). Id. 137-43.

Relators claim that Solvay provided these kickbacks so that physicians would prescribe the Drugs at Issue to individuals on government health plans. Relators assert that Solvay specifically targeted its *486 marketing schemes to physicians who had a high percentage of patients on government health plans and that it targeted physicians who were on the Medicaid Pharmaceutical and Therapeutic (“P & T”) committees of various states • by “shower[ing] the member with offers of gifts, dinners, and every kind ■ of bribe in exchange for hearing Solvay’s off-label details,” in an effort to ensure that the Drugs at Issue were listed on the states’ formularies. Id. at 116.

Relators provide several examples of prescriptions for S.olvay drugs written by physicians after receiving an alleged kickback. Id. at 144-46 & Exhs. 131-33.

D. ICD-9 Code Manipulation

Under the Medicaid program, states may only restrict coverage of drugs if (1) “the prescribed use is not for a medically accepted indication”; (2) the drug is in the list contained in subsection 1396r-8(d)(2), which includes, for example, fertility drugs, prescription vitamins, and nonprescription drugs; (3) the drug manufacturer agreed to restrictions in an agreement with Medicaid; or (4) the State excluded the drug from its formulary. 42 U.S.C. § 1396r — 8(d)(1)(B). A State can exclude a covered outpatient drug from its formulary “only if ... the excluded drug does not have a significant, clinically meaningful therapeutic advantage in terms of safety, effectiveness, or clinical outcome of such treatment for such population over other drugs included in the formulary and there is a written explanation ... of the basis for the exclusion.” 42 U.S.C. § 1396r-8(d)(4)(C). However, if a State excludes a drug from its formulary, it must permit coverage of the drug pursuant to a prior authorization program that complies with the Medicaid statute. See id. § 1396r-8(d)(4)(D).

Relators claim that Luvox, Aceon, and AndroGel each require prior authorization in some states. Dkt. 114 at 18. In order to obtain prior authorization for drugs that are excluded from state formularies, physicians generally must state why the drug is necessary and provide a written diagnosis. Dkt. 114 at 17. This diagnosis may be written using an ICD-9 code, which is a coding system used by Medicaid to designate diagnoses. Dkt. 114 at 17. Relators allege, upon information and belief, that “certain state Medicaid programs will reimburse for pharmaceutical drugs only if the drug corresponds with a specific diagnosis of the patient, designated by an ICD-9 code recorded by the patient’s physician.” Dkt. 114 at 18.

Relators assert that Solvay provided ICD-9 codes to physicians in states that required prior authorization before the Drugs at Issue could be prescribed. Relators claim that the provided ICD-9 codes, which were allegedly codes for conditions for which physicians could obtain prior authorization for the drügs, were part of an effort to conceal the real reasons the drugs were prescribed in order to obtain reimbursement for the drugs from Medicare, Medicaid, and other federal healthcare programs. Id. at 115, 146. Relators provide examples of physicians that used ICD-9 codes that Solvay allegedly provided when submitting prior authorization forms for state Medicaid programs. Id.

II. Analysis: SPI’s Motion to Dismiss

SPI moves for dismissal of Relators’ claims for violations of the FCA contained in the 4AC,. asserting that the claims are insufficiently pled under Federal' Rules of Civil Procedure 8(a), 9(b), and 12(b)(6), that the retaliation claim should be dismissed as time-barred, that the state qui tarn claims should be dismissed for state-specific pleading deficiencies, and that count 34 should be dismissed because there is no cause of action for a “common fund relief.” Dkt. 122.

*487 A. Legal Standards

1. Rule 12(b)(6) Standard

“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65 , 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957)). In considering a 12(b)(6) motion to dismiss a complaint, courts generally must accept the factual allegations contained in the complaint as true. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982). The court does not look beyond the face of the pleadings in determining whether the plaintiff has stated a claim under Rule 12(b)(6). Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.1999). “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [but] a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 127 S.Ct. at 1964 -65 (citing Sanjuan v. Am. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir.1994)) (internal citations omitted). And, “[fjactual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 127 S.Ct. at 1965 . The supporting facts must be plausible— enough to raise a reasonable expectation that discovery will reveal further supporting evidence. Id. at 1959.

2. Rule 9(b) Standard

In addition to meeting the plausibility standard, under Federal Rule of Civil Procedure 9(b), if a party is alleging fraud or mistake, the pleading must “state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b); United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 185 (5th Cir.2009) (noting that Rule 9(b) does not “supplant” Rule 8(a)). However, this particularity requirement “does not ‘reflect a subscription to fact pleading.’ ” Id. (quoting Williams v. WMX Techs., Inc., 112 F.3d 175 , 178 (5th Cir.1997)). Instead, pleadings alleging fraud must contain “simple, concise, and direct allegations of the circumstances constituting the fraud, which ... must make relief plausible, not merely conceivable, when taken as true.” Id. (internal quotations omitted) (referring to the standard enunciated in Twombly).

The Fifth Circuit interprets Rule 9(b) strictly, “requiring a plaintiff pleading fraud to specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.” Id. (quoting Herrmann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 564-65 (5th Cir.2002)). Thus, Rule 9(b) generally requires the complaint to “set forth ‘the who, what, when, where, and hov/ of the events at issue.” Id. (quoting ABC Arbitrage Plaintiffs Grp. v. Tchuruk, 291 F.3d 336, 350 (5th Cir.2002)). However, “Rule 9(b)’s ultimate meaning is context-specific.” Grubbs, 565 F.3d at 185 . Thus, “[depending on the claim, a plaintiff may sufficiently ‘state with particularity the circumstances constituting fraud or mistake’ without including all the details of any single court-articulated standard — it depends on the elements of the claim at hand.” Id.

B. Counts I and II: Federal FCA Presentment and False Record Claims

SPI claims that Relators failed to plead their claims of violations of the FCA with the specificity required under Federal *488 Rule of Civil Procedure 9(b), as the off-label promotion claims provide no basis for finding a nationwide epidemic of claims for prescriptions for off-label use written in response to off-label promotion, the unlawful kickback claims do not allege who was paid a kickback or how that kickback led to the submission of a false claim, and the ICD-9 Code manipulation claims do not connect any false claims to the alleged manipulated codes. Dkt. 122 at 11. SPI additionally claims that, under Federal Rule of Civil Procedure 12(b)(6), Relators’ allegations of FCA violations relating to unlawful kickbacks fail because Relators do not plead a viable false certification theory, and the violations with regard to off-label promotion and ICD-9 manipulation fail because Relators do not allege facts showing a material falsity that rendered pharmacy prescription claims non-reimbursable. Id. at 12.

Relators argue that the allegations in the 4AC lead to a strong inference that at least one false claim was submitted to the Government, and that Rule 9(b) does not require that the complaint allege the time, place, and contents of the actual claim submissions. Dkt. 131. As for SPI’s 12(b)(6) arguments, Relators contend that kickback-tainted claims are inherently false, so pleading false certification in not necessary. Id. They claim, however, that, regardless, they have plausibly pled that physicians, pharmacists, and third-party payers made false certifications representing to the Government that they had complied with all federal and state laws and regulations relating to fraud, including the AKS. Dkt. 131 at 26. Relators additionally argue that they have plausibly alleged that off-label and ICD-9 code claims were not reimbursable.

1. The FCA

The FCA provides for civil suits brought by either the Attorney General or private persons, known as “relators,” “who serve as a ‘posse of ad hoc deputies to uncover and prosecute frauds against the government.’ ” Grubbs, 565 F.3d at 184 (quoting United States ex rel. Milam v. Univ. of Tex. M.D. Anderson Cancer Ctr., 961 F.2d 46 , 49 (4th Cir.1992)). If a private person- desires to bring a suit under the FCA as a relator, the suit is known as a qui tam suit. See id. The relator must file the qui tam action in the name of the Government, under seal, and serve the complaint and the material evidence on the Government. 31 U.S.C. § 3730 (b) (2006).. The complaint must remain under seal for 60 days, during which the Government may either elect to intervene and proceed-with the action - or notify the court that it declines to intervene. Id. If the Government elects not to intervene, the relator has the- right to proceed with the action. 11 Id. § 3730(c)(3).

Under the current version of seqtion 3729(a)(1) of the FCA,

[A]ny person who—

*489 (A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; [or]

(B) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;

is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, ... plus 3 times the amount of damages which the Government sustains because of the act of that person.

31 U.S.C.A. § 3729 (a) (Supp.2011). Under the previous version of the relevant subsections of section 3729(a),

[A]ny person who—

(1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government ... a false or fraudulent claim for payment or approval; [or]

(2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government;

is liable to the United States Government. ...

31 U.S.C. § 3729 (a) (2006). The amendments, which were enacted in 2009, generally apply to conduct on or after May 20, 2009. However, the amendment to the previous subsection 3729(a)(2), which renumbered the subsection as 3729(a)(1)(B) and changed the text, “applies retroactively to all claims pending on or after June 7, 2008.” United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262 , 267 & n. 1 (5th Cir.2010). The Fifth Circuit interprets “claims” to mean cases or causes of action rather than claims for reimbursement. See id. Since this case was pending on June 7, 2008, the new subsection 3729(a)(1)(B) applies. See id. (applying the new subsection because the case was pending on June 7, 2008); see also United States ex rel. Patton v. Shaw Servs., L.L.C., 418 Fed.Appx. 366 (5th Cir.2011) (noting that the relator’s complaint was “pending” after the effective date of the new subsection, indicating that the new subsection should apply, but determining that the difference between the old and new subsections was irrelevant under the facts of that case). But see United States ex rel. Bennett v. Medtronic, Inc., 747 F.Supp.2d 745, 763 (S.D.Tex.2010) (collecting district court cases) (finding that the revised version of the subsection did not apply to a case that was pending on June 7, 2008, because Congress made the revision retroactive to claims pending on June 7, 2008, and “claims” under the FCA means claims for reimbursement, not cases or causes of action). However, the older version of 3729(a)(1) (now 3729(a)(1)(A)) applies. 12

The Fifth Circuit has summarized the requirements of a claim under the FCA: “(1) a false statement or fraudulent course of conduct; (2) made or carried out with the requisite scienter; (3) that was material; and (4) that is presented to the Government.” Steury, 625 F.3d at 267 . As for scienter, the relevant provisions require “knowing” conduct, and the FCA defines “knowing” and “knowingly” as having “actual knowledge of the information,” acting “in deliberate ignorance of the truth or falsity of the information,” or acting “in reckless disregard of the truth or falsity of the information.” 31 U.S.C. *490 § 8729 (b)(1)(A); see also Steury, 625 F.3d at 267 (applying this definition). “Material” means “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” 31 U.S.C. § 3729 (b)(4)(2009) (defining “material” for conduct after May 20, 2009); United States ex rel. Longhi v. United States, 575 F.3d 458, 470 (5th Cir.2009) (requiring materiality under both subsection 3729(a)(2) (2006) and 3729(a)(1)(B) (2009) and defining “materiality” as having a “natural tendency to influence, or ... capable of influencing, the decision of the decisionmaking body to which it was addressed” (citations and quotations omitted)). The “natural tendency” test requires “that the false or fraudulent statements either (1) make the government prone to a particular impression, thereby producing some sort of effect, or (2) have the ability to effect the government’s actions, even if this is the result of indirect or intangible actions on the part of the Defendants.” Longhi, 575 F.3d at 470 . Thus, the statements must “have the potential to influence the government’s decisions.” Id.

2. Rule 9(b)

SPI argues that Relators’ FCA claims stemming from alleged off-label promotion, kickbacks, and ICD-9 code manipulation should be dismissed under Rule 9(b) because Relators fail to set forth the “ ‘who, what, when, where, and how of the alleged fraud.’ ” Dkt. 122 at 12 (quoting Steury, 625 F.3d at 266 ). SPI contends that Relators must plead the specifics of a scheme to cause claims to be submitted for non-reimbursable uses and details of the claims. Id. at 15. Relators argue that, under Rule 9(b), the complaint must set forth the time, place, contents, and identity surrounding the fraud, but they contend that there is no requirement to plead the time, place, contents, and identity of the actual submissions to the Government. Dkt. 131 at 6.

The Fifth Circuit squarely addressed how much specificity is required under subsections 3729(a)(1) and (2) (2006) of the FCA in Grubbs. In Grubbs, James Grubbs, a psychiatrist who had worked for Memorial Hermann Baptist Beaumont Hospital (the “Hospital”), brought a qui tarn complaint against the Hospital and seven physicians who worked at the hospital. Grubbs, 565 F.3d at 183 . Grubbs alleged that the physicians at the Hospital saw patients only on an “as needed” basis, when the nursing staff felt it was appropriate, but the bill reflected a regular “face-to-face” hospital visit. Id. at 184 . The Grubbs defendants filed a motion to dismiss for failure to comply with the pleading requirements of Federal Rule of Civil Procedure 9(b), and the magistrate judge recommended dismissal. Id. at 185 . The district court adopted the magistrate judge’s recommendation, and Grubbs appealed. Id.

The Fifth Circuit first noted that a complaint filed under the FCA must meet the heightened pleading requirement of Rule 9(b). Id. Under Rule 9(b), a party alleging fraud or mistake “must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). Rule 9(b) “has long played [a] screening function, standing as a gate-keeper to discovery, a tool to weed out meritless fraud claims sooner than later.” Grubbs, 565 F.3d at 185 . “Rule 9(b) does not ‘reflect a subscription of fact pleading’ and requires only ‘simple, concise, and direct’ allegations of the ‘circumstances constituting fraud,’ which after Twombly must make relief plausible, not merely conceivable, when taken as true.” Id. at 186 (quoting Williams, 112 F.3d at 178). The Fifth Circuit, which “traditionally required that a fraud complaint include ‘the time, place *491 and contents of the false representation[ ], as well as the identity of the person making the misrepresentation and what that person obtained thereby,’ ” instructed that the Rule’s requirements are context-specific and “thus there is no single construction of Rule 9(b) that applies in all contexts.” Id. at 188 (quoting United States ex rel. Russell v. Epic Healthcare Mgmt. Grp., 193 F.3d 304, 308 (5th Cir.1999)).

The Grubbs court determined that, in the context of a claim under subsection 3729(a)(1) (2006) of the FCA, the Act does not require the litigant to prove reliance or damages, it “is adequate to allege that a false claim was knowingly presented regardless of its exact amount; the contents of the bill are less significant - because a complaint need not allege that the Government relied on or was damaged by the false claim.” Id. at 189. A “plaintiff does not necessarily need the exact dollar amounts, billing numbers, or dates to prove to a preponderance that fraudulent bills were actually submitted.” Id. at 190. The Fifth Circuit held that “to plead with particularity the circumstances constituting fraud for a False Claims Act § 3729(a)(1) claim, a relator’s complaint, if it cannot allege the details of an actually submitted false claim, may nevertheless survive by alleging particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.” Id.

The Fifth Circuit determined that the Grubbs complaint against the individual doctors pursuant to section 3729(a)(1) (2006) was sufficient to satisfy the requirements of Rule 9(b) because Grubbs set forth the details of the scheme as well as the specific dates that each doctor falsely claimed to have provided services to patients as well as, in some instances, the type of medical services or the procedural terminology code that would have been used to bill. Grubbs, 565 F.3d at 191-92 . The Fifth Circuit noted that the list of dates that spécifíed, unprovided services were recorded “amounts to more than probable, nigh likely, circumstantial evidence that the doctors’ fraudulent records caused the hospital’s billing system in due course to present fraudulent claims to the Government.” Id. at 192 . “That the fraudulent bills were presented to the Government is the logical conclusion of the particular allegations in Grubbs’ complaint even though it does not include exact billing numbers or amounts.” Id.

With regard to the claims under subsection 3729(a)(2) (2006), the Fifth Circuit noted that, to satisfy subsection 3729(a)(2) (2006), the defendant must make “a false record or statement for the purpose of getting a false or fraudulent claim paid by the Government.” Grubbs, 565 F.3d at 193 . Thus, “the recording of a false record, when it is made with the requisite intent, is enough to satisfy the statute.” Id. There is no need to infer that the record caused a claim to be presented. Id. Therefore, Grubbs’ allegations that two of the physicians explained how the nursing staff wrote notes relating to face-to-face visits with patients that were actually only seen on an as-needed basis, that the nursing staff attempted to assist him in recording such notes, and that certain doctors recorded false notes on specific dates, were sufficient to state a claim for fraud under subsection 3729(a)(2) (2006) and should not have been dismissed at the pleading stage. Id.

Under the subsection 3729(a)(1)(B) (2009), the phrase “to get a false or fraudulent claim paid or approved by the Government,” which was used in the previous version, has been replaced with “material to a false or fraudulent claim.” Compare 31 U.S.C. § 3729 (a)(1)(B) (2009), with 31 U.S.C. § 3729 (a)(2) (2006). The first part *492 of the subsection, “knowingly makes, uses, or causes to be made or used, a false record or statement,” remains unchanged. While the Grubbs court did not require presentment of the claim or subsection 3729(a)(1) (2006) claims, it is unclear whether the new version requires presentment.

Thus, in this case, in order for the subsection 3729(a)(1) (2006) claims to survive Solvay’s Rule 9(b) challenge, the 4AC must allege “particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.” The “logical conclusion” of the allegations must be that fraudulent claims were submitted to the government. And, the subsection 3729(a)(1)(B) (2009) claims can survive only if the 4AC alleges that Solvay made a false record or statement that was material to a false or fraudulent claim, i.e. that had the potential to influence the government’s decision. The court turns first to the subsection 3729(a)(1) (2006) claims.

a. Subsection 3729(a)(1) (2006) Off-Label Promotion Claim

SPI argues that, under Grubbs, Relators must pair their allegations of a scheme with “details ‘such as dates and descriptions of recorded, but unprovided, services and a description of the billing system that the records were likely entered into.’ ” Dkt. 122 at 15 (quoting Grubbs, 565 F.3d at 190-91 ). SPI states that Relators have not identified any instance in which a physician actually wrote a prescription for a federal program patient because of an alleged off-label promotion scheme and a pharmacy submitted a claim for that off-label prescription. Id. Relators, on the other hand, claim that the 4AC provides reliable indicia that claims were actually submitted and that they are not required to “plead the who, what, when, where, and how of a claim. ” Dkt. 131 at 7. Relators claim that they have pled the who, what, when, where, and how of the alleged fraudulent scheme in detail, including alleging the identities of brand managers and other executives involved in the alleged scheme, discussion of the official brand strategy, alleged illegal tactics endorsed for achieving off-label sales, and informal and formal selling practices. Dkt. 131 at 8. Relators contend that this information is sufficient, alone, to state a claim under Grubbs; however, they claim they have pled “more than was required,” as they have pled “ample ‘representative samples’ of off-label claims submitted to Medicaid for each of the three drugs” at issue. Id. at 12 (citations omitted).

1. Reliable indicia of that the off-label marketing scheme caused physicians to write off-label prescriptions

The 4AC includes substantial allegations that Texas physicians wrote off-label prescriptions for Luvox, AndroGel, and Aceon for federal program patients. E.g., Dkt. 114 at 50, 63, 90. SPI claims, however, that the 4AC fails to assert that the alleged off-label promotion caused a specific physician or physicians to write these prescriptions. Dkt. 122 at 17-18. SPI contends that this court, in Bennett v. Medtronic, “rejected similarly lacking allegations just months ago.” Dkt. 122 at 18 (citing Bennett, 747 F.Supp.2d 745 ).

In Bennett , the court considered whether to dismiss a qui tam FCA claim alleging that off-label promotion of a medical device caused physicians and hospitals to submit false Medicare and Medicaid claims. 747 F.Supp.2d at 748 . The court determined that the relators “failed to plead with sufficient particularity the alleged false claims, [as the] relators [did] not identiffy] any [of the defendant’s] employees who engaged in off-label promotion nor specific physicians or hospitals who received the promotions.” Bennett, 747 F.Supp.2d at 779 . Additionally, the Bennett relators did not *493 identify any physicians to whom the defendant promoted its medical device for off-label use who actually submitted false claims to the Government for off-label use. Id. The Bennett court distinguished Grubbs, finding that, unlike the plaintiffs in Grubbs, the Bennett relators’ complaint did “not sufficiently allege[ ] that by promoting off-label use, [the defendant] caused the submission of false claims and is liable under the FCA.” Id. at 780-81 (emphasis added).

Here, Relators’ contentions relating to the off-label promotion scheme paired with the promotion and prescription details outlined relating to individual Texas physicians in the 4AC are reliable indicia that permit a strong inference that the off-label promotion scheme caused at least some physicians to write off-label prescriptions for Luvox, Aceon, and AndroGel. Unlike the complaint in Bennett , which did not identify any physicians who received the alleged off-label promotions (see 747 F.Supp.2d at 779 ), the instant complaint identifies specific physicians in Téxas who prescribed Luvox, Aceon, and AndroGel to Medicaid patients for off-label use after sales representatives “pitched” these uses during sales calls or who attended presentations that specifically discussed the off-label uses. Dkt. 114 at 50.

For example, on December 31, 1999, a sales representative documented a “pitch” to a doctor in which the representative discussed geriatric safety of Luvox based on pediatric safety. This physician prescribed Luvox to a 74-year-old patient for anxiety on March 11, 2000, and to a 78-year-old patient for paranoia on September 7, 2000; these are both uses that are not indicated on Luvox’s label. 13 Dkt. 114 & Exh. 18.

With regard to AndroGel, the 4AC identifies, for ‘ example, two physicians who wrote Medicaid prescriptions for AndroGel for off-label conditions associated with “andropause” after receiving and being encouraged to use the ADAM questionnaire from Solvay, which is aimed at detecting “andropause.” Dkt. 114 at 92-93 & Exhs. 72, 74. The 4AC additionally provides examples of physicians who received extensive detailing, from Solvay about AndroGel and subsequently prescribed AndroGel for off-label uses. Dkt. 114 at 90-94. Relators do not provide any details about what the sales representatives said during the sales calls, so the court does not rely on these examples alone to determinate that Relators have provided reliable indicia that off-label promotion led to off-label claims, but these examples buttress the examples provided that are linked to specific promotional messages, and, when paired with these specific examples and all of the details provided about the off-label campaigns, constitute reliable indicia permitting the necessary inference. Thus, there is specific support for Relators’ contention that physicians indeed wrote prescriptions for off-label uses of AndroGel after receiving off-label promotion.

There is less evidence of causation in the 4AC with regard to Aceon, but the court finds that the examples provided reliably indicate that Solvay’s off-label marketing of Aceon led to off-label prescriptions. For instance, the 4AC identifies several *494 physicians who began prescribing Aceon extensively to Texas Medicaid patients after attending talks in which arterial wall compliance and the diabetic kidney were discussed, yet had never prescribed Aceon before attending the talks. 14 Dkt. 114 at 63 & Exh. 35, 36. SPI argues that this example is not reliable because the prescriptions were “for an unidentified indication.” Dkt. 122 at 16. Relators’ attached charts, however, provide diagnosis information. See Dkt. 114, Exh. 36. Moreover, the chart at Exhibit 36a provides a list of prescriptions of Aceon written for diabetic patients by these doctors, and the chart at Exhibit 36b provides a list of prescriptions for Aceon written for stroke patients by these doctors. Dkt. 114 at 63 & Exh. 36a-b & Exh. Index. Relators’ two most extensively alleged off-label promotion claims for Aceon (24-hour control/diabetic kidney and PROGRESS/stroke prevention) were allegedly specifically targeted at physicians with diabetic and stroke patients. Dkt. 114 at 53-60. The court finds that the examples when considered in light of the other information in the 4AC provide reliable indicia that Solvay’s off-label promotion of Aceon caused physicians to prescribe Aeon for off-label uses.

SPI also argues that Relators must provide details of instances in which SPI allegedly promoted each Drug at Issue to a physician for each alleged off-label use and caused a physician to write a prescription for that off-label use that was ultimately filled. Dkt. 122 at 15-17. Relators have provided representative examples for multiple alleged off-label uses for these drugs, but they have not provided examples of every alleged off-label use. Relators have alleged a nationwide off-label promotion scheme involving multiple drugs with multiple off-label uses, and with such an extensive scheme, it is not practical to provide specific details about prescriptions for every alleged off-label use at the pleading stage. Grubbs simply requires reliable indicia that lead to a strong inference that claims were actually submitted. Here, the court finds that the allegations relating to the off-label promotion scheme for each off-label use paired with the examples that show that some of the off-label promotion led to prescriptions for some of the off-label uses meets that standard. Moreover, the heightened 9(b) pleading standard *495 “stems from the obvious concerns that general, unsubstantiated charges of fraud can do damage to a defendant’s reputation.” Guidry v. Bank of LaPlace, 954 F.2d 278, 288 (5th Cir.1992). In the court’s view, the lack of examples for some of the off-label promotion claims does not threaten SPI’s reputation with unsubstantiated charges given the number of examples of promotion for off-label uses that are substantiated.

2. Reliable Indicia Off-Label Claims Submitted to Government

SPI claims that “[gjeneral off-label promotion allegations that are not linked to particularized details reliably demonstrating that false claims resulted do not state a FCA claim.” Dkt. 122 at 17. SPI contends that Relators must allege the submission of a claim for payment to the government for a non-reimbursable, off-label use as a result of improper off-label promotion. Id. SPI argues that Relators’ failure to provide “details like dates and descriptions of pharmacies submitting claims” is fatal to their claim. Id. at 16.

Relators claim, on the other hand, that the 4AC contains sufficient reliable indicia to raise a strong inference that claims arising from Solvay’s alleged schemes were actually submitted to the government. Dkt. 131 at 8. First, Relators indicate that they have intimate knowledge of Solvay’s off-label schemes due to their positions as district managers in the company. Id. at 9. Relators claim that their “supervisors trained them in various off-label tactics and directed them to teach them in turn to their representatives.” Id. at 9. Second, Relators claim that Solvay specifically targeted physicians who prescribed to patients on government health programs as well as physicians who were on state P & T committees, which made decisions about which drugs to include on state formularies, so that physicians would prescribe the Drugs at Issue to patients on government health programs and the government would provide reimbursement for the prescriptions. Id.

SPI cites United States ex rel. Rafizadeh v. Continental Common, Inc., 553 F.3d 869 (5th Cir.2008), in support of its contention that the allegations in the 4AC are insufficient under Rule 9(b) because they are not particularized enough to demonstrate that false claims were actually submitted to the government. In Rafizadeh, the Fifth Circuit considered whether a district court erred in dismissing, with prejudice, a qui tarn suit alleging that landlords overcharged government entities on lease agreements. 553 F.3d at 872 . The pleading in Rafizadeh indicated that the defendants knowingly submitted false claims for rental invoices to the state departments in charge of the program, which caused them to submit false claims to the federal government, which was obligated to fund the state departments’ budgets. The Fifth Circuit noted that “the linchpin of an FCA claim is a false claim” and determined that the allegation that claims were submitted was insufficient under Rule 9(b) because it did “not describe what statements were contained in the budget, who prepared it, or what role it played in securing funding from the federal government.” Id. at 873 . Thus, the details of the “claims” were not sufficiently particularized. Id.

Here, like in Rafizadeh, the details provided of the actual claims submitted to government payers are not substantial. However, there are enough other facts alleged that reliably indicate that false claims were submitted to government agencies. The 4AC provides many details that strongly suggest that Solvay’s alleged off-label marketing scheme resulted in claims being submitted to the government for payment. First, it is clear that there were claims submitted to government pay *496 ers for off-label uses of the Drugs at Issue, as Relators provide claims data indicating that Texas physicians wrote prescriptions for off-label uses of the Drugs at Issue to patients on Texas Medicaid and that these prescriptions were filled. See Dkt. 114 at 50, 64-65, 93-94. Second, the 4AC indicates that off-label prescriptions were likely submitted to government payers because Solvay allegedly specifically targeted its marketing to physicians that prescribe drugs to patients who are on government health programs. See id. at 107, 111-22. For example, Relators allege that Solvay put stickers on samples reminding physicians that the drugs were covered by Medicaid and that Solvay district managers used prescribing information data to shape their marketing pitches to individual physicians who wrote prescriptions to individuals on Medicaid. Id. 113-14. Solvay also allegedly targeted physicians who were members of state P & T committees, in an attempt to obtain favorable treatment on state formularies. Id. at 116-19. Taken together, these allegations raise a strong inference that claims were actually submitted to the government for reimbursement.

In sum, the 4AC plausibly alleges a nationwide off-label promotion scheme to submit false claims for each of the Drugs at Issue and reliable indicia leading to a strong inference that claims were actually submitted, and thus survives SPI’s Rule 9(b) challenges. SPI’s motion to dismiss based on failure to allege the off-label promotion claims with particularity is DENIED. SPI’s other requests for dismissal relating to off-label promotion are made pursuant to Rule 12(b)(6) rather than 9(b) and will accordingly be analyzed after the court addresses SPI’s Rule 9(b) challenges relating to kickbacks and ICD-9 codes,

b. Alleged Kickbacks

In the 4AC, Relators contend that Solvay’s alleged unlawful attempts to induce physicians to prescribe its drugs include a scheme to provide kickbacks to physicians for prescribing the Drugs at Issue. Relators claim that “Solvay’s off-label marketing and kickbacks schemes went hand-in-hand to induce high-Medicaid prescribing — physicians to prescribe and continue prescribing Solvay drugs.” Dkt. 131 at 19. Relators assert that “Solvay bribed doctors to use its drugs” with “bogus speaker and research fees, resort weekends, cash payments, or Harley Davidson goods.” Dkt. 114 at 122. Relators contend that Solvay’s provision of these kickbacks was a violation of the Medicare-Medicaid Anti-Fraud and Abuse Amendments (“Anti-Kickback Statute” or “AKS”) and that any claims resulting from the unlawful kickbacks were in violation of the FCA.

SPI moves for dismissal of Relators’ kickback claims under Rule 9(b), claiming that the 4AC fails to provide “any details about any false claim resulting from the variety of kickback ‘schemes’ ” that Relators allege and that the 4AC provides no details upon which to base a strong inference that false claims were submitted. Dkt. 122-2 at 19 (citing Grubbs, 565 F.3d at 190-91 ). SPI argues that in order to meet the Grubbs reliable indicia standard, Relators must allege “when SPI paid a physician an unlawful kickback with the requisite intent to cause a prescription to be written for one of those drugs for a government program patient, what prescriptions were caused by that kickback, and how the government was billed for those prescriptions.” Dkt. 139 at 3-4. SPI claims that no allegations in the 4AC connect the alleged kickbacks to a resulting prescription from a doctor or a pharmacy’s claim for payment. Dkt. 122 at 19-20. As for the specific examples that are contained within the 4AC, SPI notes that they only relate to “a handful of physicians” who allegedly prescribed a Solvay drug within four years of receiving a speaker fee for participating in Solvay *497 speaker programs. Id. at 20. Solvay asserts that these physicians are all from Texas and therefore offer no support for .allegations outside of Texas and that many of the allegations involve, prescriptions that were written years after the alleged kickback and therefore provide no reliable link. Id. at 20-21. Additionally, SPI asserts, that the -4AC makes no mention of any claims allegedly resulting from several of the specific types of kickbacks, so the claims relating to these types of kickbacks are not particularized in accordance with Rule 9(b). ■ Dkt. 122 at 19.

Despite the fact that the claims data that the 4AC uses to link specific physicians who allegedly received kickbacks to Medicaid prescriptions for the Drugs at Issue are all from Texas, Relators have alleged enough details of a geographically diverse kickback scheme to reliably indicate that there was a nationwidé kickback scheme. 15 They have alleged their own personal knowledge of the kickback scheme as Solvay sales managers, and they have provided details of specific types of kickbacks provided in different parts of the country, including an internal Solvay audit report that indicates various types of gifts were given to physicians in Louisiana and Texas, information about physicians in West Virginia to whom King, in his capacity as a sales representative, provided kickbacks (in the form of speaker’s fees), and information about roundtables at upscale resorts in different areas of the country where Solvay allegedly paid for physicians’ and their families’ rooms, meals and activities, golf, and a show in the evening, as well as specific allegations relating to physicians receiving kickbacks in Virginia, Georgia, North Carolina, and Alabama. Dkt. 114 at 10, 102-03, 124-25, 140-44 & Exh. 1; See Dkt. 131 at 17. The 4AC alleges that some events, such as resort weekend in Arizona involving only “six hours of meetings and plenty of time for golf’ were organized “out of headquarters.” Dkt. 114 at 124-25.

The 4AC reliably indicates that the alleged kickbacks resulted in prescriptions to patients on government health plans and leads to a strong inference that claims were actually submitted. First, the 4AC indicates that the physicians Solvay targeted to receive off-label promotion were also targeted for kickbacks-physieians who prescribed to patients on Medicaid and other government health plans and physicians who were on state P & T committees. Dkt. 114 at 116. For instance, Solvay managers allegedly considered doctors’ Medicaid prescription volume when determining’ which doctors to target for kickbacks. Dkt. 114 at 113-15. Solvay also specifically targeted members of states’ Medicaid P & T committees in an effort to obtain placement of their drugs on the state formularies, allegedly showering the committee members with offers of gifts, dinners, and bribes. Dkt. 113 at 116. Relators provide a specific example of a Solvay Regional Business Director who “encouraged his sales team members to ‘wine and dine’ these doctors, even doctors who never prescribed Solvay drugs or were retired,” in an obvious attempt to influence P & T committees. Id. at 117.

Moreover, the specific examples that Relators provide of physicians who prescribed the Drugs at Issue after receiving alleged kickbacks demonstrate that physicians who received alleged kickbacks in fact did write prescriptions for patients on Medicaid. Solvay argues that the provided examples are not sufficient because (1) the examples are all from Texas and thus *498 do not support Relators’ nationwide contentions; (2) there are not examples for each of the alleged kickback schemes contained within the 4AC; and (3) the prescriptions in the examples are not temporally linked to the alleged kickbacks. Dkt. 122 at 20-21; 139 at 9.

First, the examples of Texas physicians who prescribed Solvay drugs after receiving kickbacks lead to a strong inference that this also happened in other parts of the country. Solvay claims that the district court for the Eastern District of Arkansas, in United States ex rel. Thomas v. Bailey, No. 4:06CV00465 JLH, 2008 WL 4853630 , at *6 (E.D.Ark. Nov. 6, 2008), held that a relator who identified only a “handful of physicians” who allegedly received kickbacks did not support the allegation of a nationwide policy. Dkt. 122 at 19. However, in Thomas the relator specified false claims with respect to only two physicians. 2008 WL 4853630 , at *6. The alleged false claims specified in this case are significantly more extensive. See Dkt. 114 at 144 — 46 & Exhs. 131-33. Moreover, the 4AC alleges that some of the kickback schemes were organized by company headquarters and implemented nationwide. See, e.g., Dkt. 114 at 124-25.

Second, while Relators have not provided representative examples of false claims submitted for every alleged type of kickback scheme in the 4AC, the different schemes are alleged in detail, and there are representative examples that some of these alleged schemes resulted in claims to government health care programs. See Dkt. 114 at 122-46. Thus, there are reliable indicia that false claims resulting from kickbacks were submitted to government health care programs. Specific examples linking prescriptions to every type of kickback alleged is unnecessary, as Solvay has sufficient notice of the types of kickbacks alleged and can prepare its case accordingly-

Third, the specific Medicaid prescriptions for Aceon described in the 4AC are sufficiently linked to kickbacks as the physicians who wrote the prescriptions allegedly received kickbacks. The 4AC provides examples of physicians who prescribed Aceon within one to two months of attending programs offering cash kickbacks for prescribing Aceon. See id. at 136 , 145 & Exh. 132. Solvay claims that the 4AC contains no link between a kickback and prescriptions that the physicians wrote years later, and it cites United States ex rel. Foster v. Bristol-Myers Squibb Co., 587 F.Supp.2d 805, 824 (E.D.Tex.2008) in support of its position. In Foster, the federal district court in the Eastern District of Texas dismissed a kickback claim because it was “without information to suggest that kickbacks induced any recommendation connected to ... federal healthcare patients.” 587 F.Supp.2d at 824 . The Foster relator provided information about alleged kickbacks but did not provide one factual detail or example of a claim resulting from the kickbacks. Id. Here, Relators provide details and examples. Dr. Fifteen, for example, had never written a prescription for Aceon before February 2000, when he attended his first Solvay City event; Solvay City is a program whereby physicians were allegedly paid cash for providing feedback about Solvay sales pitches. Dkt. 114 at 63-64, 137. After this initial event, Solvay allegedly paid Dr. Fifteen to fly to Milan for the unveiling of the PROGRESS results and, thereafter, Solvay paid Dr. Fifteen to give presentations about PROGRESS. Dkt. 114 at 64 & Exhs. 37, 38. Dr. Fifteen wrote 365 Medicaid prescriptions for Aceon between February 2000 and June 2005. Dkt. 114 at 64 & Exh. 75.

The examples of kickbacks to physicians who prescribed AndroGel to Medicaid patients are not as extensive as the examples *499 for Aceon. The examples are mainly of-kickbacks for speaker programs for Aceon. For instance, Dr. Fifteen received kickbacks for speaking about Aceon, but he began prescribing AndroGel shortly after the kickbacks for the Aceon programs began. Dkt. 114, Exh. 75. The 4AC contains several other examples of physicians who received kickbacks for various Aceon events and began prescribing AndroGel as well as Aceon. Dkt. 114, Exh. 133 & Index. These examples, while not specific to AndroGel alone, link kickbacks to AndroGel prescriptions for Medicaid patients and are reliable indicia that claims for reimbursement for AndroGel prescriptions resulted from kickbacks.

With regard to Luvox, the examples of Medicaid prescriptions written for Luvox provided by Relators are, as Solvay suggests, too distant in time from the dates of the alleged kickbacks or otherwise do not reliably indicate that the two are related. The specific examples of Texas physicians who allegedly received kickbacks for prescribing Luvox indicate that the physicians received some type of speaker fees in 1996 or 1997; these physicians did not begin writing prescriptions for Luvox for Medicaid patients until November 1999. See Dkt. 114 at 144 & Exh. 131. Another example provided by Relators of physicians receiving kickbacks for prescribing Luvox is Dr. Twenty-Six. Solvay, through Relator King, provided fees ranging from $750 to $1000 per event to Doctor Twenty-Six, who was originally the eighth highest prescriber of Luvox in the country, to give speeches about Luvox. Relators state that a “turning point with Dr. Twenty-Six came with a speaker’s event at Princeton Community Hospital in Princeton, WV, in 1995 or 1996 at which [Dr. Twenty-Six] spoke with local psychiatrists and nurses at the hospital. Before the event, 2.5 to three percent of Dr. Twenty-Six’s prescriptions were for Luvox, but after that October 1, 2011, Dr. Twenty-Six began prescribing four to 4.5 percent of his patients Luvox.”- Dkt. 114 at 102. These prescriptions are linked sufficiently in time to the alleged kickbacks, but they are not linked sufficiently to Medicaid. According to King, Dr. Twenty-Six was in an economically depressed area in West Virginia with a high proportion of Medicaid enrollees. However, there is no allegation that Dr. Twenty-Six was even a Medicaid provider. Cf. United States ex rel. Barrett v. Columbia/HCA Healthcare Corp., 251 F.Supp.2d 28, 35 (D.D.C.2003) (holding that the qui tarn relators did not plead their kickback claims with particularity because the allegations were not linked to Medicare patients, in general, and were “too vague to give defendants notice of the relationship between the alleged kickbacks and the submission of claims to Medicare”). The court therefore holds that the kickback claims relating to Luvox do not meet the Rule 9(b) pleading standard.

In sum, the court holds that the 4AC reliably indicates that Solvay’s alleged kickback practices were crafted with the intent that physicians would write prescriptions for Solvay drugs and that these prescriptions would be reimbursed' by Medicaid or other government payers. The examples of physicians who allegedly received kickbacks from Solvay and later wrote prescriptions for AndroGel and Aceon are reliable indicia that the kickbacks caused the Medicaid claims. However, the examples of Luvox claims are not sufficiently linked to alleged kickbacks to raise a strong inference that claims were actually submitted, and, while there do not necessarily have to be specific examples if the allegations lead to a strong inference that claims resulting from the kickbacks were submitted, there are not enough other details alleged to raise that inference. Accordingly, SPI’s motion to dismiss Relators’ kickback claims based on kickbacks *500 for Aceon and AndroGel is DENIED, but its motion to dismiss Relators’ kickback claim based on kickbacks for Luvox is GRANTED.

c. Alleged ICD-9 Code Manipulation

SPI contends that Relators’ claims relating to ICD-9 code manipulation should be dismissed because there are no reliable indicia that claims were submitted to the Government with ICD-9 codes that were improper for a patient’s diagnosis or treatment plan. Dkt. 139 at 9. Relators contend that the 4AC has supplied all of the particulars required by Grubbs with regard to the ICD-9 code scheme and have supplied specific examples as well. Dkt. 131 at 20. Relators state that they have alleged specific codes urged on specific physicians and described specific exchanges between sales representatives and physicians. Id. Relators claim that these allegations “more than raise a strong inference that claims were submitted to Medicaid, and thus they satisfy Rule 9(b) under Grubbs with regard to an (a)(1) claims.” Id.

The 4AC alleges that Solvay provided lists of ICD-9 diagnosis codes to physicians “for the sole purposes of evading formulary controls and sometimes concealing actual uses in order to obtain reimbursement for Luvox, Aceon and AndroGel.” Dkt. 114 at 146. Solvay allegedly trained sales representatives to distribute the codes to practitioners, and sales representatives allegedly coached physicians to submit alternative diagnoses to government health plans. Id. at 147 . The 4AC contains examples of physicians who used these codes when writing prescriptions for Medicaid patients. Id. at 148-49 . These examples, however, do hot indicate that the codes used by the physicians did not actually meet the patients’ diagnoses. For example, the 4AC alleges that Dr. Eighty-six’s sales representative provided code 440.9 to him or her, which stands for Atherosclerosis (unspecified), and that Dr. Eighty-six used the code immediately with one of his or her Medicaid patients. Id. at 148 . The 4AC fails, however, to allege that this diagnosis code did not match the patient’s symptoms. Thus, it is unclear from the 4AC how the claim is a false claim. The 4AC also alleges that Doe’s manager wrote an email indicating that the “best codes” for obtaining reimbursement for AndroGel prescriptions “are the ones that reflect the symptoms, not the disease, such as ED [erectile dysfunction], Low Libido, Depressed Mood, Fatigue/Tiredness, etc.” Id. at 149 . There is no indication, however, that a claim for a prescription for a symptom rather than the disease is a false claim. There are no allegations that any patient receiving a prescription for AndroGel for a symptom rather than a disease did not actually have the specified symptom. The 4AC also alleges that Dr. Eight-nine and Dr. Ninety “prescribed only AndroGel among testosterone products and chose [ICD-9] codes based on positive answers to the ADAM questionnaire.” Dkt. 114 at 149-50. If the patients’ responses were positive, then the codes apparently matched the patients’ symptoms. Thus, any resulting claims could not be considered false.

Because there is no indication in the 4AC that claims arising from the ICD-9 codes Solvay allegedly provided to physicians are false claims, the 4AC fails to state a claim under subsection (a)(1) relating to ICD-9 manipulation with particularity. Accordingly, SPI’s motion to dismiss the federal FCA claims relating to ICD-9 manipulation is GRANTED.

d. Subsection 3729(a)(1)(B) (2009) Claims

Relators contend that Solvay knowingly used, or caused to be made or used, false records or statements, or omitted material facts to either get false or fraudu *501 lent claims paid or approved by the government or that were material to false or fraudulent claims, in violation of section 3729(a)(2) (2006). SPI argues, in conjunction with its claims that the subsection 3729(a)(1) (2006) claims should be dismissed, that the subsection 3729(a)(2) (2006) or 3729(a)(1)(B) (2009) should be dismissed. SPI, however, fails to differentiate between the two subsections after its initial discussion. Subsection 3729(a)(1), however, is known as the “presentment provision,” and subsection 3729(a)(2) (2006)/3729(a)(l)(B) (2009) is known as the “false record or' statement provision.” Grubbs, 565 F.3d at 184 . The false record or statement provision does not require a showing that the alleged false, claims were presented to the government. Id. at 192-93 (citing Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662, 670 , 128 S.Ct. 2123 , 170 L.Ed.2d 1030 (2008)). Subsection 3729(a)(1)(B) (2009) imposes FCA liability on any person who “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.”

In Allison Engine Co v. United States ex rel. Sanders, the Supreme Court of the United States interpretéd subsection 3729(a)(2) (2006) as requiring that “the defendant made a false record or statement for the purpose of getting ‘a false or fraudulent claim paid or approved by the government.’” 553 U.S. at 671 , 128 S.Ct. 2123 . It additionally held that “it is insufficient for . a plaintiff asserting a § 3729(a)(2)' claims to' show merely that ‘[t]he false statement’s use ... resulted] in obtaining or getting payment or approval of the claim,’ ... or that ‘government money was used to pay the false or fraudulent claim’ instead, “a plaintiff asserting a § 3729(a)(2) claim must prove that the defendant intended that the false record or statement be material to the Government’s decision to pay or approve the false claim.” Id. at 665, 128 S.Ct. 2123 . Congress responded to the holding in Allison Engine by passing the Fraud Enforcement and Recovery Act of 2009 (“FERA”), which amends subsections 3729(a)(2) and 3729(a)(3) (the corresponding conspiracy subsection). Senator Leahy of the Committee on the Judiciary submitted a Senate Report on FERA, in which he noted that the bill would clarify and correct the erroneous interpretations of the FCA in Allison Engine and in a case decided by the District of Columbia Court of Appeals that held that FCA liability could only attach if a claim was presented to the federal government and paid by federal grant or contract funds. See S.Rep. No. 111-10, at 10 (2009), 2009 WL 787872 (discussing Allison Engine and United States ex rel Totten v. Bombardier Corp., 380 F.3d 488 (2004)). Senator Leahy noted that under Allison Engine, “even when a subcontractor in a large Government contract knowingly submits a false claim to a general contractor and gets paid with Government funds, there can be no liability unless the subcontractor intended to defraud the Federal Government, not just their general contractor.” Id. Senator Leahy indicated that this interpretation was “contrary to Congress’s original intent in passing the law and ereate[d] a new element in a FCA claim and a new defense.” Id. The new bill removed the term “to get,” which the Allison Engine court had interpreted as creating an intent requirement, as well as the phrase “paid or approved by the Government,” and added the term “material to.” Id. at 12. The new amendments defined “material” as “having a natural tendency to influence, or being capable of influencing, the payment or receipt, of money or property.” Id. The report notes that these changes “prevent a new ‘presentment’ requirement from being read into the section.” Id.

Because Congress made the FERA amendments to subsection 3729(a)(2) *502 (2006) (now 3729(a)(1)(B)) apply to all claims pending on June 7, 2008, and the Fifth Circuit has interpreted this to mean that it applies to lawsuits that were pending as of that date, the court must apply the amended subsection. The plain language of the amended subsection and the Congressional history indicate that the court need not consider whether Solvay made false statements with the intention of getting false claims paid by the federal government. Rather, the court must consider whether the false or fraudulent statements made by Solvay were material to a false or fraudulent claim, i.e., they had a “potential to influence the government’s decisions.” Longhi 575 F.3d at 470 ; see also United States ex rel. Loughren v. Unum Grp., 613 F.3d 300, 307 (1st Cir.2010) (defining “material” for FCA claims).

The first factor the court must consider for any FCA claim is whether a false statement or fraudulent course of conduct has been alleged. See Longhi 575 F.3d at 467 . As described above, the 4AC sets forth details about an off-label promotion scheme for the Drugs at Issue, and it has provided sufficient particularity to satisfy Rule 9(b). The second factor is scienter — the challenged pleading must allege that the defendant had “actual knowledge of the information,” was acting “in deliberate ignorance of the truth or falsity of the information,” or was acting “in reckless disregard of the truth or falsity of the information.” Id. Here, Solvay does not argue that scienter is inadequately alleged. The third factor is materiality. Id. Relators have alleged sufficient facts for their claims under subsection 3729(a)(2) to demonstrate that Solvay engaged in the alleged marketing schemes with the intention that these schemes would have the natural tendency to influence the decision of the government to pay the claims resulting from the schemes. They have asserted facts indicating that Solvay had an intricate scheme to market each drug for off-label uses and that Solvay targeted its off-label marketing campaigns to doctors who prescribed to Medicaid populations and other healthcare programs by, for instance, distributing lists to sales representatives of doctors who prescribed Luvox, Aceon, or AndroGel to patients within these programs, and that Solvay intentionally targeted members of state Medicaid P & T committees to gain favorable treatment of the Drugs at Issue on state Medicaid formularies. 16 See 4AC at 111-122. The fourth element for FCA claims, presentment, does not apply to subsection 3729(a)(2) (2006) claims. It is unclear whether allegations that claims were actually submitted to the federal government is required under subsection 3729(a)(1)(B) (2009), but, if that element is required, it is adequately alleged for the same reasons that the presentment requirement of subsection 3729(a)(1) (2006) is adequately alleged.

Because the details in the 4AC about the allegations in the 4AC that Solvay engaged in the alleged marketing schemes with the intention that the schemes would have the natural tendency to influence the decision of the government to pay the claims resulting from the schemes, Solvay’s motion to dismiss Relators’ subsection 3729(a)(2) (2006)/3729(a)(l)(B) (2009) claims because they lack Rule 9(b) particularity is DENIED.

3. Rule 12(b)(6)(FCA)

a. Alleged Kickbacks

Under the AKS, 42 U.S.C. § 1320a-7b(b), it is illegal for an individual to

*503 knowingly and willfully ... [receive] any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind ... in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program.

42 U.S.C. § 1320a-7b(b)(l)(A). Likewise, it is illegal to

knowingly and willfully [offer or pay] any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person ... to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program.

42 U.S.C. § 1320a-7b(b)(2)(A).

SPI argues that Relators’ FCA claims should be dismissed under Rule 12(b)(6) for the following reasons: (1) FCA claims for violations of the AKS must be premised on a false certification to the Government by the pharmacies submitting claims for reimbursement that SPI complied with the AKS in its dealings with the prescribing physician, and the 4AC fails to allege certification; and (2) the'4AC fails to plead falsity or materiality as to the alleged FCA violations based on off-label promotion and ÍCD-9 code manipulation. Dkt. 122 at 22, 26. As to the former claim, Relators claim that FCA liability does not require false certification when the goods or services for which reimbursement is sought are tainted by kickbacks because kickback-tainted claims are non-reimbursable when they are intentionally or recklessly caused to be submitted. Dkt. 131 at 22. Relators argue, however, that they have plausibly pled certification, as they have alleged that compliance with applicable laws and regulations was a condition of payment for both the federal and state FCAs. Dkt. 131 at 26-27. As to the latter claim, Relators point to allegations in the 4AC that reimbursement for off-lábel uses are not generally covered by Medicaid and other government health programs, and that the programs’ exceptions, are generally limited to medically accepted indications. Moreover, Relators contend, that they have pled at least one off-label use for each drug that was promoted by Solvay yet is not reimbursable under any circumstances because it is not listed in any drug compendium and is thus not a medically accepted use. Dkt. 131 at 29. Relators also note that there are problems with the uses that were listed in DrugDex and that some of the uses that were fisted in DrugDex were not actually supported.by DrugDex. Id. at 30.

I) Certification

In order for a claim for reimbursement to be a false claim under the FCA it must be “false.” SPI argues that claims for reimbursement can be either “factually false” or “legally false.” Dkt. 139 at 10. SPI contends that the claims for reimbursement of the Drugs at Issue are not factually false because they are for drugs that were actually disbursed. And, .SPI alleges that a claim for reimbursement cannot be rendered “legally false” simply because it resulted from a violation of a statute. Id. SPI argues that Relators must, at a minimum, specify the certification that they allege makes it facially plausible that pharmacy claims were legally false. Dkt. 139 at 13. SPI additionally asserts that Relators cannot rest their claims on an implied certification theory because the Fifth Circuit has not recognized an implied certification theory. Dkt. 139 at 12.

The United States, though declining to intervene in this action, filed a state *504 ment of interest relating to this contention. Dkt. 130. The United States claims that it has “a substantial interest in the proper interpretation of the False Claims Act, which also serves as the model for many similar state anti-fraud statutes, because it is the government’s primary tool to combat fraud and recover losses from fraud in federal contracts and programs,” and that it “has an especially strong interest in the proper application of the FCA to claims for reimbursement for drugs prescribed because of kickbacks.” Id. “When ... the United States does not intervene in an FCA action, the qui tam plaintiff-relator is the only party who has the ‘right to conduct the action.’ ” United States ex rel. Gudur v. Deloitte Consulting LLP, 512 F.Supp.2d 920, 927 (S.D.Tex.2007). The government, however, retains various rights including the right to be served with copies of pleadings, to limit discovery, to later intervene under certain circumstances, to settle with the defendants, and to seek dismissal of the case. Id. The Fifth Circuit has noted that “[t]here is nothing in the FCA that prohibits the government from submitting an amicus curiae brief.” Id. Rather, the “extent to which the court permits or denies amicus briefing lies solely within the court’s discretion.” Id. Here, the court finds the United States’ statement of interest to be timely and useful and therefore accepts the statement of interest as an amicus brief.

a) FCA Liability Based on Violations of AKS

Relators argue that nothing “in the FCA or its history suggests that ‘certification,’ whether express or implied, is the only form of a ‘false or fraudulent’ claim,” and that so long as a claim is nonreimbursable, it is a false claim under the FCA. Dkt. 131 at 21-22. Relators assert that compliance with the AKS is a condition of receiving Medicare payment and claim, therefore, that “where the goods or services are tainted by kickbacks and therefore non-reimbursable, it is not necessary to examine ‘false certification,’ whether express or implied.” Id. at 22. Relators contend that kickback-tainted prescriptions are inherently fraudulent and that the FCA “surely encompasses claims that are the product of fraudulent conduct.” Id. at 23.

The United States likewise asserts that “claims.for reimbursement for drugs prescribed because of kickbacks are plainly false under the FCA even in the absence of any express or implied false certification.” Dkt. 130 at 2. The United States claims that “the judgment of a physician who receives something of value in return for the referral of medical procedures is per se tainted by the financial incentive being offered.” Dkt. 130 at 8 (citing Kickbacks Among Medicaid Providers, Report of the Senate Special Committee on Aging, S.Rep. No. 95-320, at 2 (1977)). The United States and Relators cite several cases in which they claim courts have determined that claims for payment of services induced by kickbacks are false claims under the FCA. Id. (citing United States ex rel. Conner v. Satina Reg’l Health Ctr., 543 F.3d 1211 , 1223 n. 8 (10th Cir.2008)); McNutt ex rel. United States v. Haleyville Med. Supplies, 423 F.3d 1256, 1259-60 (11th Cir.2005); United States ex rel. Schmidt v. Zimmer, Inc., 386 F.3d 235, 243 (3d Cir.2004); United States v. Rogan, 459 F.Supp.2d 692, 717 (N.D.Ill.2006), aff'd 517 F.3d 449 (7th Cir.2008); United States ex rel. Jamison v. McKesson, No. 2:08CV214-SA-DAS, 2009 WL 3176168 , at 11 (N.D.Miss. Sept. 29, 2009). The United States asserts that “the question of ‘falsity’ turns on whether the claimant is eligible for payment under the federal program at issue.” Dkt. 130 at 8 (citing United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1174 (9th Cir.2006)).

*505 Additionally, the United States claims that while there is no plain language in the version of the FCA that was in effect during the time period at issue here indicating that violations of the AKS are per se violations of the FCA, Congress has recently clarified its position with regard to the whether kickbacks render claims “false” under the FCA in the Patient Protection and Affordable Care Act (“PPA-CA”), Pub.L. No. 111-148, § 6402 (f), 124 Stat. 119 (codified at 42 U.S.C. § 1320a-7b(g)). Dkt. 130. Relators likewise claim that “Congress recently confirmed” that kickback-tainted claims are “false” by enacting PPACA. Dkt. 131 at 24. The United States argues that “the PPACA amendment reflects the basic principle, already established in the 1986 FCA amendments, that ‘claims may be false even though services are provided as claimed if, for example, the claimant is ineligible to participate in the program.’ ” Dkt. 130 at 10 (quoting Sen. Rep. No. 345, 99th Cong.2d Sess., at 9, reprinted in 1986 U.S.C.C.A.N. 5266, 5274). The United States maintains that PPACA clarified the relationship between the AKS and FCA and that the amendment is persuasive evidence of how claims prior to the effective date of the amendment should be treated. Id. Relators also assert that the PPACA amendment “strongly evidences Congress’s intent as to the prior law.” Dkt. 131 at 24.

SPI argues that the claims at issue are not “factually false” claims and that the PPACA is not necessarily a clarification. Rather, SPI argues that while the PPACA may make kick-back tainted claims false after its enactment, it has no bearing on whether kickback-tainted claims were considered false under the pre-PPACA Anti-Kickback Statute.

With the PPACA, Congress amended the Anti-Kickback Statute to provide that a “claim that includes items or services resulting from a violation of this section constitutes a false or fraudulent claim” within the meaning of the FCA. 42 U.S.C.A. § 1320a-7b(g) (Supp.2011). In discussing the bill, Senator Leahy noted that it amends “the anti-kickback statute to ensure that all claims resulting from illegal kickbacks are considered false claims for the purpose of civil action under the False Claims Act, even when the claims are not submitted directly by the wrongdoers themselves,” and he stated that the “bill clarifies the intent requirement of another key health care fraud statute in order to facilitate effective, fair, and vigorous enforcement.” 155 Cong. Rec. S10852-01 (Oct. 28, 2009) (statement of Sen. Leahy), 2009 WL. 3460582, at *S10854 (Westlaw). Senator Kaufman also discussed the bill, noting that efforts to prosecute violations of the Anti-Kickback Statute had been hindered because claims resulting from kickbacks were “laundered into ... ‘clean’ claim[s] when an innocent third party submitted] the claim to the government for payment.” 155 Cong. Rec. S10852-01, 2009 WL 3460582 , at *S10853. Senator Kaufman stated that the bill remedied “the problem by amending the anti-kickback statute to ensure that all claims resulting from illegal kickbacks are ‘false or fraudulent,’ even when the claims are not submitted directly by the wrongdoers themselves.” Id.

This legislative history, unfortunately, does not answer the question before this court — whether the pre-PPACA statute should be interpreted as rendering a claim resulting from violations of the AKS a “false” claim under the FCA. The United States argues that the amendment is persuasive evidence of how claims made prior to the effective date of the new legislation should be treated, and the court agrees that it is persuasive. See Red Lion Broad. Co. v. F.C.C., 395 U.S. 367, 380-81 , 89 S.Ct. 1794 , 23 L.Ed.2d 371 (1969) (“Subsequent legislation declaring the intent of an *506 earlier statute is entitled to 'great weight in statutory construction”). -However, it is not definitive, and the court must 'also consider how courts, and particularly the Fifth Circuit, treated the pre-PPACA statute.

The United States and Relators-cite several cases in support of their position that claims resulting from violations of the AKS are automatically false claims under.the FCA. However, the cited . cases- do ■ not provide support for the proposition that the court-should consider any .claims submitted as a result óf Solvay’s alleged kickbacks to be false claims under the -FCA absent certification of compliance with health care laws by the entity submitting the claims. Instead, in each of these cases, the courts reasoned that filing a certificate of compliance with- health, care laws and regulations can result in' FCA liability if the entity has submitted claims that resulted from violations of the AKS. See Conner, 543 F.3d at 1223 n. 8.(noting that several other courts had reasoned that violations of the AKS rendered the certification of compliance with laws and regulations contained in an annual cost report by a hospital false, but finding it unnecessary to reach the issue); McNutt, 423 F.3d at 1259-60 (finding that the government, which asserted a claim- that the defendant had (1) ■ violated the AKS,. (2) certified on the Medicare enrollment .form that they would comply with the statute, and (3) submitted claims for reimbursement knowing they were ineligible for payments, had stated a claim under the FCA); Schmidt, 386 F.3d at 243 (holding that the plaintiff “alleged a violation of the FCA when he alleged that [a hospital] certified its compliance with federal health care law knowing the certification was false,” as the hospital had allegedly accepted kickbacks from the defendant orthopedic implant manufacturer, and that the implant manufacturer could likewise be liable if it knew the kickbacks would result in false certifications of compliance to Medicare); Rogan, 459 F.Supp.2d at 717 (noting that “falsely certifying compliance with the AKS in a Medicare cost report is actionable under the FCA”); 17 Jamison, 2009 WL 3176168 , at *11 (noting that “[s]ubmitting false certificates of compliance with federal'health care law, such as the Anti-. Kickback Statute, - creates ' False. Claims .Act liability”). Thus, the cases .cited by the United States and Relators do not support their interpretation of' the prePPACA statute.

Fifth Circuit caselaw likewise does not support a finding that claims arising before PPACA resulting from a violation of the AKS should be considered false without an allegation that the entities submitting the claims certified compliance with health care laws. In United States ex rel. Thompson v. Columbia/HCA Healthcare. Corp., 125 F.3d 899, 903 (5th Cir.1997), the Fifth Circuit reviewed a district -court’s order granting the defendants’.motion to dismiss for failure to state a claim. The qui tarn plaintiff, Thompson, alleged that

*507 the defendants falsely certified in annual cost reports that the Medicare services identified were provided in compliance with all laws and regulations, yet the services were rendered in violation of the AKS and the Stark laws. 18 Thompson, 125 F.3d at 901 . The district court held that these AKS allegations were insufficient to state a claim because Thompson had not alleged that the defendants submitted false certification to obtain payments for false or fraudulent claims and that Thompson failed to plead his allegations that defendants submitted claims for medically unnecessary services with particularity as required by Rule 9(b). Id. The Fifth Circuit noted that “claims for services rendered in violation of a statute do not necessarily constitute false or fraudulent claims under the FCA,” as “the FCA is not an enforcement device.” Thompson, 125 F.3d at 902 . However, “where the government has conditioned a payment of a claim upon a claimant’s certification of compliance with, for example, a statute or regulation, a claimant submits a false or fraudulent claim when he or she falsely certifies compliance with that statute or regulation.” Id. Thompson had alleged that defendants, as a condition of their participation in the Medicare program, were required to certify that the services in their reports were provided in compliance with laws and regulations and that the defendants therefore falsely certified compliance. See id. One of the defendants argued that the certificátions were not a prerequisite to payment of Medicare claims, and the Fifth Circuit therefore remanded the case for further factual findings on that issue. See id.

In light of this precedent, the court declines to hold, as the United States and Relators request, that an allegation of express certification is unnecessary and the allegations in the 4AC that claims to government entities resulted from unlawful kickbacks are sufficient to survive SPI’s 12(b)(6) motion simply because the claims allegedly resulted from violations of the AKS.

b) FCA Liability Based on Violations of AKS and Certification

SPI argues that, since there is no allegation that it submitted false claims itself, the only way Relators can state a claim under the FCA is to show that the entities submitting the claims falsely certified compliance with the AKS. 19 Dkt. 122 at 22-24. Relators point out that they have pled that physicians, pharmacists, and third-party payers made false certifications and represented to the government full compliance with all federal and state laws and regulations relating to fraud, including the AKS, and that compliance with these laws was a condition of payment. Dkt. 131 at 26; see, e.g., Dkt. 114 ¶ 415. The 4AC additionally asserts that “ ‘[compliance with applicable Medicare, Medicaid and the various other federal and states laws ... was an implied, and upon infor *508 mation and belief, expressed [sic.] condition of payment of claims.’ ” Dkt. 131 at 26-27 (quoting 4AC ¶¶ 441-64). Additionally, the 4AC discusses guidelines issued by the American Medical Association, the Pharmaceutical Manufacturers Association, Accreditation Council for Continuing Medical Education, and the Office of the Inspector General relating to kickbacks and asserts that the issuance of the guidelines “demonstrates that federal and state health care programs consider compliance with the Anti-Kickback Statute a prerequisite to receiving or retaining reimbursement payments from Medicaid, Medicare Part D, and other federal health care programs.” Dkt. 114 at 25.

Under- an express certification theory, “where the government has conditioned payment of a claim upon a claimant’s certification of' compliance with, for example, a statute or regulation, a claimant submits a false or fraudulent claims when he or she falsely certifies compliance with that statute or regulation.” Thompson, 125 F.3d at 902 . Under an implied certification .theory, which has not been adopted by the Fifth Circuit, see United States ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 382 (5th Cir.2003), “courts do not look to the supplier’s actual stateménts; rather, the analysis focuses on, the underlying contracts, statutes, or regulations themselves to ascertain whether they make compliance a prerequisite to the government’s payment” McKesson, 2009 WL 3176168 , at *11 (citing Conner, 543 F.3d at 1217-18 , and United States ex rel. Siewick v. Jamieson Sci. & Eng’g, Inc., 214 F.3d 1372, 1376 (D.C.Cir.2000) (other, citation omitted)). Thus, if. a statute “expressly prohibits payment if a provider fails to comply with its terms, defendants’ submission of the claim forms implicitly certifies compliance with its provision.” Mikes v. Straus, 274 F.3d 687, 701 (2d Cir.2001).

First, the court notes that SPI’s motion to dismiss asserts that the- 4AC should be dismissed due to failure to sufficiently allege certification under Rule 12(b)(6), and it does so in a completely different section' than its motion to dismiss for lack of particularity required by Rule 9(b). However,' it argues that the 4AC has not alleged the “what when, and how of a certification case, and what made • the. certification a condition of compliance,” and that it thus fails to state a claim under the FCA false certification theory. Dkt. 122 at 26. It is thus unclear whether SPI is suggesting that certification must be pled with particularity. However, the Grubbs court held that an FCA claim can survive even if it cannot allege the “details of an actually submitted false claim,” so long as it does provide sufficient detail for the underlying fraudulent scheme and reliable indicia that strongly imply false claims were submitted. Grubbs, 565 F.3d at 190 . The standard for certification should be embodied in the requirement of submission of a false claim, and the details of certification should not be required so long as there are reliable indicia that strongly imply that the certifications were made.

Relators claim that pharmacies and other entities submitting claims for payment of the, allegedly false claims expressly or impliedly certified “full compliance” with the health care regulations and statutes. Caselaw suggests that at least some providers must sign a provider agreement certifying compliance with Medicare laws in order to receive reimbursement from Medicare, and the forms are standardized by the federal Centers for Medicare and Medicaid Services. See, e.g., Hutcheson, 647 F.3d at 381-82. Thus, it is plausible that at least some providers expressly certified compliance with health care regula-, tions and statutes and that the certifications were rendered false by unlawful kickbacks. However, the conclusory state-

*509 ments regarding certification in the 4AC are not reliable indicia that strongly imply that the third parties submitting the claims did, indeed, certify compliance. While it is not necessary to plead the details of the certifications of every party that allegedly submitted false claims, Relators must plead details about certifications required for reimbursement of claims from parties submitting claims for some of the alleged government health plans in order to raise the inference that other government health plans require similar certifications. Here, there are absolutely no details alleged. Accordingly, Relators have not met the pleading standard for the FCA claims premised on the AKS. SPI’s motion to dismiss the claims based on kickbacks is GRANTED and the claims based on kickbacks are DISMISSED.

ii) Materiality/Falsity

In Part II.B.2.a, supra, the court determined that the off-label promotion allegations are sufficient to satisfy the first two prongs of the FCA test enunciated by the Fifth Circuit in Longhi and Steury with regard to a false or fraudulent statement made with the appropriate scienter. The court also determined that the alleged off-label promotion was sufficiently linked to claims for reimbursement from government health plans for off-label uses, and thus that the fourth requirement, presentment, is met, insofar as whether off-label claims were submitted to the government. The third requirement for all FCA claims is materiality — the fraudulent action must have had a natural tendency to influence the government’s decision regarding payment of claims. Longhi, 575 F.3d at 470 . SPI moves to dismiss the 4AC under Rule 12(b)(6) because it fails to plead falsity or materiality as to the alleged FCA violations based on off-label promotion and ICD-9 code manipulation. Dkt. 122 at 22, 26.

First, the court notes that it found above that the claims based on ICD-9 code manipulation were not stated with particularity under Rule 9(b) because there were no reliable indicia that claims were actually submitted with ICD-9 codes that were improper for a patient’s diagnosis. See Part II.D, supra. This means that the claims were not material, so there is not need to address materiality in this section. Conversely, the court found above that the alleged off-label promotion was material to off-label claims, under subsection 3729(a)(1) (2006), insofar as that requirement is encompassed in the Grubbs standard, see Part II.B.2.a, supra, and under subsection 3729(a)(1)(B), see Part II.B.2.d, supra.

SPI’s argument here, though, is not that the alleged scheme was not material to off-label claims. Rather, SPI argues that Relators fail to allege facts demonstrating that off-label claims stemming from the alleged off-label promotion were non-reimbursable, and therefore false, claims. Dkt. 139 at 17. SPI asserts that claims for off-label uses could be reimbursable if certain state Medicaid agencies decided not to restrict off-label use or if the off-label use is included in DrugDex or other compendia, making it a “medically accepted” use. Dkt. 122 at 27-28. SPI thus contends that the - government’s decision regarding payment of claims would not be impacted by knowledge that the claims were for off-label uses unless the claims were not for medically accepted uses, and most of the off-label uses alleged are medically accepted. SPI contends that Relators have not provided any details about states that would have placed restrictions on medically accepted uses.

Relators point out that the 4AC states that reimbursement for claims for off-label uses, whether arising from off-label marketing or ICD-9 code manipulation, are *510 generally ' not covered by Medicaid and other, health programs and that the programs’ exceptions are generally limited to “medically, accepted indications.” Dkt. 131 at-27-28. Relators claim that details about which states cover which uses is beyond what even Rule 9(b) requires and that it is “patently unreasonable” to demand these details — particularly at the motion to dismiss stage. Dkt. 131 at 28-29. Moreover, Relators assert that the 4AC does provide particular allegations with regard to the reimbursability of the uses at issue, as it alleges at least one use that is not reimbursable under any circumstances because it is not “medically accepted.” Id. at 29. Relators also point to allegations in the 4AC about various alleged problems with DrugDex entries for certain uses of the three drugs at issue. Id. Relators thus argue that (1) they have pled that each of the Drugs at Issue was promoted off label for uses that were not listed in DrugDex and thus were not medically accepted; (2) they have pled that Solvay inappropriately influenced which drugs were deemed medically accepted by influencing DrugDex entries and inappropriately influencing which drugs required prior authorization by targeting physicians on state P & T committees; and (3) it is unreasonable to require it to list which uses each state deems are not reimbursable.

The 4AC alleges that Solvay promoted each of the Drugs at Issue for uses that were not on the drugs’ labels and not listed or not supported by DrugDex. However, while the 4AC has linked off-label promotion of the Drugs at Issue to off-label claims submitted to government health plans, it does not link the uses that are not in DrugDex to claims submitted to government health plans. “FCA liability does not attach to violations of federal law or regulations, such as marketing of drugs in violation of the [Food, Drug, & Cosmetic Act], that are independent of any false claim.” United States ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 727 (1st Cir.2007), overruled ón other grounds by Allison Engine, 553 U.S. 662 , 128 S.Ct. 2123 . Even though the 4AC clearly states that the alleged uses of Luvox, Aceon, and AndroGel are off-label, a claim for reimbursement of an off-label prescription is not automatically a “false” claim because an off-label use is not always a “medically unnecessary” use. See Bennett v. Boston Scientific, No. H-07-2467, 2011 WL 1231577 , at *3 (S.D.Tex. Mar. 31, 2011) (Rosenthal, J.) (collecting cases) (“Courts recognize that off-label use of a drug or medical device is not the same as medically unnecessary use of that drug or device.”). If an off-label use is supported by DRUG-DEX or another approved compendia, then it is a “medically áccepted indication,” and claims for payment of medically accepted indications are not false claims. See 42 U.S.C. § 1396r-8d.

For example, in Rost, DRUGDEX stated that -the FDA had not approved the drug at issue, .Genotropin (also known as Somatropin), for short stature but that the drug was possibly effective for adults with short stature and its use for children with short stature was controversial United States ex rel. Rost v. Pfizer, Inc., 253 F.R.D. 11, 14 (D.Mass.2008) (remand after 507 F.3d 720 ). The Rost defendants argued that this listing in DRUGDEX meant that the drug’s use for short stature was a medically accepted indication because it was supported by DRUGDEX. Id. The Rost court noted that there were conflicting viewpoints on whether a listing' in DRUGDEX for a specific use is “support” for that use or whether the listing actually has to be positive in order to “support” the use. Id. (comparing Edmonds v. Levine, 417 F.Supp.2d 1323 (S.D.Fla.2006) (holding that a drug is “supported” by citation in a compendia even if it is only “possibly effective” or even “ineffective”) with Ctr. for Medicaid and State Operations, Medicaid *511 Drug Rebate Program Release No. 141, For State Medicaid Directors: Compendia Clarification (distinguishing between “supported” and merely “listed”)). The Rost district court ultimately determined that the record was insufficient to determine whether the citations in DRUGDEX for short stature supported the off-label use. Id. at 16.

Here, Relators list several problems with the DRUGDEX listings for Luvox, Aceon, and AndroGel and thus maintain that claims for reimbursement for prescriptions for the off-label uses it describes in the 4AC, even if the uses were listed in DRUGDEX, were false claims.

a) Luvox. According to Relators, at some point between 1996 and 2003, DRUGDEX listed 27 uses for Luvox, including depression, Asperger’s disorder, autistic disorder, body dysmorphic disorder, compulsive buying, depression with anxiety disorder, irritable bowel syndrome, kleptomania, pathological gambling, post-traumatic stress disorder, premenstrual dysphoric disorder, stereotypic behavior, and trichotillomania. Dkt. 114 at 48. By 2008, DRUGDEX had delisted some of these uses, changed the listings for most of the OC Spectrum uses, including listings for PTSD, autism, body dysmorphic disorder, and eating disorders, from “effective” to “inconclusive” or “possibly effective,” and changed the depression support from its most supportive category to a middle range category. Id. at 48-49. The 4AC asserts that the listings generally cite only a case study of a few subjects or, at times, only anecdotal evidence of effectiveness. Dkt. 114 at 48-49. And, the 4AC states that the FDA has specifically rejected the new drug application for the use of Luvox to treat depression twice, and the 4AC thus contends that the listing in DRUG-DEX “cannot render it a ‘medically accepted indication.’ ” Dkt. 114 at 49. The 4AC also points out that many of the studies listed in DRUGDEX in connection with off-label uses of Luvox are sponsored by Solvay or Solvay-owned subsidiaries or authored by Solvay national speakers. Id.

Notwithstanding the alleged problems with DRUGDEX’s listed off-label uses for Luvox, according to the Medicaid statute, if the uses are “supported by one or more citations” in DRUGDEX, the uses are “medically accepted indications.” 42 U.S.C. § 1396r-8(k)(6). Absent special circumstances, states cannot restrict coverage of a drug if it is used for a medically accepted indication. See 42 U.S.C. § 1396r-8(d)(1)(B)(i). Many of the off-label conditions for which Relators claim Solvay promoted Luvox were supported by DRUGDEX. There can be no claim that depression, for instance, was merely listed, when Relators themselves confirm that it was in the most supportive category for some of the relevant time period. Allegations that indicate that claims were submitted for Luvox prescriptions for conditions supported by DRUGDEX do not reliably indicate that false claims were submitted.

The 4AC, however, asserts that Solvay promoted Luvox for uses that were not even listed in DRUGDEX, including “use as a sleep aid, all children’s prescriptions outside of OCD, and the following OC Spectrum disorders: stand alone anxiety disorder, Tourette’s syndrome, anti-social personality disorder, schizo-obsessive disorder, sexual compulsions, and ADHD.” Dkt. 114 at 48-49. Additionally, the 4AC claims that hypochondriasis appeared only after 2003 and that Solvay had already pulled Luvox from the market at this time. Id. at 49.

According to the 4AC there were at least $6 million in Medicaid claims for Luvox in Texas alone and the majority of these sales were for indications other than OCD. Id. at 50. The specific call notes *512 discussed in the 4AC with regard to Luvox indicate that doctors prescribed Luvox for ADHD, infantile autism and panic disorder, or childhood psychosis after either receiving pitches from Solvay sales representatives for Luvox’s use for panic disorder, autism, or the OC Spectrum, or after attending a presentation about the use of Luvox in children with anxiety, and that the prescriptions were filled. Id. at 50. Since use in children, other than for OCD, was allegedly never listed in DRUGDEX, these examples are reliable indicia that claims that were not eligible for reimbursement — in states that restrict access to uses of drugs that are not medically accepted 20 — were actually submitted.

b) AndroGel. With regard to AndroGel, the 4AC states that “[m]any of the off-label uses for AndroGel promoted by Solvay have not been listed in DRUGDEX and thus are not even arguably ‘medically accepted,’ such as andropause, diabetes, metabolic syndrome, and methadone/pain.” Id. at 89. Additionally, it notes that weight gain in HIV patients was “delisted between 2003 and 2008” due to alleged “concerns about the listing.” Id. at 89, It states that depression was downgraded to a middle category between 2003 and 2008, and it notes that the only' citation for the use of AndroGel for depression listed in the 2003 edition was a study by a Solvay Luvox speaker. Id. at 90. Additionally, the 4AC indicates that the studies listed in support of the listings for the use of AndroGel for sexual dysfunction and a third of the citations for osteoporosis were either Solvay-sponsored or authored by Solvay national speakers. The 4AC states that these “conflicts of interest were not disclosed to DRUGDEX and/or do not appear on the faces of the authorities.” Id. at 90. The 4AC also claims that even though certain uses, such as for menopause, anxiety, and female osteoporosis, are listed in DRUGDEX, the listings, are not supportive of use for these conditions due to the “conclusions of the research or its paucity.” Id.

The specific examples of off-label prescriptions for AndroGel in the 4AC indicate that physicians prescribed AndroGel for off-label uses after receiving detailing for those uses from Solvay sales personnel. See, e.g., id. at 91-92 (providing details about promotions to specific doctors for off-label uses); id. 93-94 (providing details of specific Medicaid prescriptions for off-label uses). However, the 4AC does not provide any specific details of off-label prescriptions for uses not listed by DRUG-DEX (i.e. andropause, diabetes, metabolic syndrome, and methadone/pain). 21 The *513 AndroGel prescription examples include prescriptions for pediatric use, use in women, HIV patients, andropause and supposedly related ailments like osteoporosis and sexual dysfunction, and depression. Id. at 91-94 & Exhs. 71-77. The 4AC does not provide any information about the DRUG-DEX listings for pediatric use. With regard to use in women, while perhaps not approved by the FDA, DRUGDEX lists AndroGel for menopause in the 2003 edition and for postmenopausal hormone replacement therapy in the 2008 edition. Id. at 90. The 2008 edition’s listing, however, states that AndroGel’s úse in hormone replacement therapy has negative effects “but is beneficial in terms of sexual function.” Id. These listings clearly support the use of AndroGel for women in certain situations. With regard to HIV, the 4AC notes that AndroGel was delisted between 2003 and 2008 due to concerns about the listing, but the prescription examples provided are after 2003 and before 2008, a time during which the use of AndroGel in HIV patients was supported by DRUG-DEX. Id. at 89. And, with the exception of osteoporosis in women, the conditions related to “andropause” — depression and sexual dysfunction — are supported by DRUGDEX. Relators contend that depression was downgraded to the middle category, with efficacy rated as “inconclusive,” between' 2003 and 2008, but the provided examples are all before 2008. Id. at 90. While Relators contend that the only study listed as supportive of use for depression is a study by a Solvay speaker, which Relators contend is a conflict of interest, that does not change the dispositive fact that the use was supported by DRUGDEX at the time the prescriptions were written. See id. Relators also contend that the studies listed that supported AndroGel’s use in patients with sexual dysfunction were “largely sponsored by Solvay, or authored by Solvay speakers,” and that the conflict of interest was not disclosed to DRUGDEX and does not appear on the face of the authorities. Id. at 90. Again, even if there was a problem with the studies listed to support the use of AndroGel in DRUGDEX, if the listing indicated that it was appropriate to use AndroGel for sexual dysfunction, then DRUGDEX supported that use. Finally, with regard to osteoporosis, 4AC contends that DRUGDEX listed AndroGel as being “ineffective” for female osteoporosis and that the studies supporting osteoporosis, in general, were Solvay-sponsored. Id. Again, the source of the studies is irrelevant so long as the substance of the listing supports the use, and there is no indication that DRUGDEX does not support use for osteoporosis for male patients. The prescription data provided by Relators relating to osteoporosis prescriptions indicates that the diagnosis was for “osteoporosis, unspecified.” Id. at 94. The genders of the patients listed are not specified. See id. In order to satisfy the requirements of Rule 9(b), Relators must provide rehable indicia that false claims were actually submitted. Since there is not way to tell if any of the patients who received AndroGel for osteoporosis were women, there are no reliable indicia that the prescriptions were not for a medically accepted use- — osteoporosis in men. Thus, even though Relators have alleged particular details of a scheme to submit off-label claims for AndroGel paired with reliable indicia that lead to a strong inference off-label claims were actually submitted, there is not reliable indicia leading to a strong inference that false claims, i.e. claims that were not for a medically accepted indication under the statute, were submitted’ for AndroGel.

c) Aceon. The 4AG alleges, that the DRUGDEX lists the following off-label uses of Aceon: hypertension-diabetes, nephropathy-diabetic, prevention of secondary stroke, and atherosclerosis (hardening *514 of the arteries). Dkt. 114 at 62. The 4AC states that the 2003 edition of DrugDex listed Aceon as being effective for hypertension associated with diabetes, but it notes that most of the research supporting this entry is Solvay-sponsored and that the listing was downgraded to the middle category in the 2008 edition. Id. The 4AC states that the studies supporting the nephropathy associated with diabetes entry do not even involve Aceon — they involve other ACE inhibitors. Id. The only research supporting secondary stroke, according to the 4AC, is the “unsupportive PROGRESS study” and a 1996 Solvaysponsored study. Id. The secondary stroke listing was downgraded from the most supportive to the middle category for the 2008 edition. Id. Even though the alleged support for these three listings is suspect, the DrugDex categories for the three uses support the uses.

The fourth listing, atherosclerosis, is offered because one of the biggest off-label campaigns for Aceon was allegedly “arterial wall compliance,” which is not listed in DrugDex, and the 4AC posits that atherosclerosis could be understood to cover this use. 22 The listing in the 2003 edition of DrugDex for atherosclerosis, however, is “ineffective,” and the condition is not listed at all in the 2008 edition. Id. DrugDex, thus, does not support the use of Aceon for atherosclerosis, and it therefore cannot be deemed a “medically accepted use.” The examples provided by the 4AC, however, do not link the off-label promotion campaign for arterial wall compliance to prescriptions for arterial wall compliance or atherosclerosis. While the court concluded above that the fact that physicians began prescribing substantial amounts of Aceon after receiving off-label messages about arterial wall compliance is reliable indicia that it resulted in claims being submitted, the specific examples in the 4AC does not support the conclusion that the off-label promotion of AndroGel and Aceon resulted in materially false claims,

d) Alternative Ways of Showing Falsity/Materiality

Linking the off-label promotion to materially false claims with claims data is not the only way in which the 4AC could allege that the prescriptions resulting from the off-label promotion had a natural tendency to influence the government’s decision regarding payment of claims. Relators argue that problems associated with the DrugDex support of the off-label uses and Solvay’s specific targeting .of P & T committee members to gain favorable treatment on state formularies demonstrate that the off-label promotion campaign had a natural tendency to influence the government’s decision regarding payment of claims.

With regard to DrugDex, the 4AC alleges that Solvay improperly influenced what uses were included in DrugDex by manufacturing “medical literature over which it maintained control in order to submit to compendia and win access to Medicaid formulary coverage.” Dkt. 114 at 108-09. This allegation includes claims of ghostwriting, conflicts of interest, and scientifically flawed studies. Id. at 109. The 4AC provides a specific example of a physician who was one of Solvay’s “thought leaders” and has recently been exposed (in relation to other companies) as' signing ghost-written articles. Id. The 4AC also alleges that Solvay did not disclose to DrugDex that it had financial ties to various entities that sponsored studies *515 supporting off-label uses in DrugDex. Id. at 111. It is unclear to what extent the alleged problems with the support for off-label indications in the 4AC would have impacted DrugDex’s decision to support the off-label uses. If DrugDex would have decided not to support the uses because the alleged problems with the studies supporting the uses, then states would not be required to reimburse for the uses. See 42 U.S.C. § 1396r-8(d)(l)(B)(i) (allowing states to restrict use if a drug is not prescribed for a medically accepted indication); id. § 1396r-8(k)(6) (defining “medically accepted indication” as a “use for a covered outpatient drug which is approved under the [FDCA] or the use of which is supported by one or more citations included or approved for inclusion in any of the compendia described” in the Medicaid statute). The complaint alleges that Solvay intentionally misled DrugDex about the off-label uses and/or colluded with Solvay when it supported the off-label uses. Dkt. 114 at 108.

The 4AC additionally alleges that Solvay specifically geared its off-label promotion towards members of state P & T committees in a attempt to influence which drugs were included on the states’ Medicaid formularies. Dkt. 114 at 116. The 4AC alleges that “[w]ooing P & T committee members was discussed openly and earnestly on periodic conference calls with upper management.” Id. at 117. A Solvay sales representative allegedly argued for the inclusion of Aceon on the Preferred Drug List in a meeting with the West Virginia P & T Committee. Id. at 118. She allegedly relied on the PROGRESS study, which the 4AC alleges does not support the use of Aceon at all. See id.

Taken together, the allegations about problems with the DrugDex listings and the alleged wooing of P & T committee members plausibly influenced which drugs were placed on state formularies and thus had a natural tendency to influence the states’ decision, and in turn the federal government’s, decision with regard to payment. Accordingly, the 4AC plausibly satisfies the materiality element.

SPI additionally asserts that claims for off-label uses could be reimbursable if certain state Medicaid agencies decided not to restrict off-label use and contends that Relators have not provided any- details about states that would have placed restrictions on medically accepted uses. Relators argue that it is patently unreasonable to require them to do so. The court agrees that this level of detail is not necessary at the pleading stage. Cf. Grubbs, 565 F.3d at 190 (stating, in the context of holding that exact contents of bills were not required to state a claim, that “[t]o require these details at pleading is one small step shy of requiring actual documentation with the complaint, a level of proof not demanded to win at trial and significantly more than any federal pleading rule contemplates”).

In sum, the court finds that the 4AC plausibly pleads that the claims resulting from off-label promotion were false or material. SPI’s motion to dismiss the off-label claims based on the alleged lack of falsity or materiality is DENIED.

C. Count III: Federal FCA Conspiracy

Relators allege that Solvay conspired with physicians to promote of-label uses of the Drugs at Issue and to pay kickbacks to physicians in violation of the AKS and subsection 3729(a)(3) (2006) of the FCA. Dkt. 114 at 169. Congress did not make the FERA amendments to subsection 3729(a)(3), which it amended and recodified as subsection 3729(a)(1)(c), retroactive. The amended version applies only to “conduct on or after the date of enactment”— May 20, 2009. The court therefore will analyze the FCA conspiracy claims in ac *516 cordance with the text of the previous version and the caselaw interpreting that version. The previous version states: “Any person who ... conspires to defraud the Government by getting a false or fraudulent claim, allowed or paid[,] ... is liable to the United States Government

.SPI contends that Relators’ conspiracy claims fail under Rules 9(b) and 12(b)(6) for the same reasons the underlying claim fails and, additionally, because Relators fail to allege the basic elements of a conspiracy. Dkt. 122 at 29. Like the underlying claims, a conspiracy claim under section 3729(a)(3) (2006) must be plead with particularity under Federal Rule of Civil Procedure 9(b). Grubbs, 565 F.3d at 193 . Thus, like with the underlying claims, the motion to dismiss the conspiracy claims based on off-label promotion is DENIED, the motion to dismiss the conspiracy claims based on ICD-9 code manipulation is GRANTED, and the motion to dismiss the conspiracy claims based on the AKS is GRANTED.

In addition, to plausibly plead an FCA conspiracy claim, Relators must allege “ ‘(1) the existence of an unlawful agreement between defendants to get a false or fraudulent claim allowed or paid by [the Government] and (2) at least one act performed in furtherance of that agreement.’ ” Grubbs, 565 F.3d at 193 (quoting United States ex rel. Farmer v. City of Houston, 523 F.3d 333, 343 (5th Cir.2008)). The actual presentment of a false claim is not necessary. See id. Relators claim that the following allegations in the 4AC assert an agreement and an act or acts in furtherance of that agreement: (1) Solvay allegedly paid doctors’ airfare and lodging to go to a luxury hotel or resort to participate in marketing feedback panels about Aceon and Luvox, during which the physicians, deemed “consultants,” would provide comments about the presented marketing schemes, Dkt. 114 at 126; (2) Solvay allegedly would provide physicians with honoraria or fees for participating in regional advisory boards during which off-label indications for AndroGel and Luvox would be discussed, id. at 126-27; (3) Solvay allegedly provided honoraria and other kickbacks to physicians who prescribed Aceon and provided case studies about its use for secondary stroke patients, id. at 129 & Exh. 114; (4) Solvay allegedly paid physicians participating in the ACES program, who signed district advisory board agreements and completed patient tracking forms, $100 for each patient to whom they prescribed Aceon, id. at 136; and (5) Solvay allegedly paid physicians, who signed expert interview consultants’ request forms, $100 after the launch of Aceon for participating in an interview about the physicians’ treatment of hypertension prior to the launch of Aceon, id. at 135.

In order to state a claim, these alleged facts must give rise to an inference that the Solvay and the physicians conspired to defraud the government. Allison Engine, 553 U.S. at 672 , 128 S.Ct. 2123 . Moreover, if the alleged conduct pertains to an agreement to make a false record or statement (subsection 3729(a)(2) (2006)), “it must be shown that the conspirators had the purpose of ‘getting’ the false record or statement to bring about the Government’s payment of a false or fraudulent claim.” Id. at 672-72 , 128 S.Ct. 2123 . In other words, “it must be established that [the alleged conspirators] agreed that the false record or statement would have a material effect on the Government’s decision to pay the false or fraudulent claim.” Id. at 673 , 128 S.Ct. 2123 .

Here, there is no allegation that the physicians made any agreement with the purpose of having an impact on the Government’s decision to pay false or fraudu *517 lent claims. For example, in an agreement relating to receiving money for submitting case studies about patients with secondary stroke in exchange for $150, the document specifically states that Solvay was “interested in collecting cases [for a newsletter] that illustrate the prevention of secondary stroke.” Dkt. 114, Exh. 114. While this would qualify as an agreement to help promote an off-label use of Aceon, it does not indicate in any way that the newsletter would be used to influence physicians who prescribe to patients on government health plans to prescribe the drug off-label. While the physicians entering into this agreement could certainly infer that some physicians prescribing to some patients on government health plans may receive the newsletter, this inference is too far removed from the agreement to state a claim for a conspiracy to defraud the government. The letter recruiting physicians to participate in the ACES consultation program also demonstrates that whatever agreement the physician entered into with Solvay was not related to defrauding the government. See Dkt. 114, Exh. 125. The letter states that the purpose of the program is to enable physicians to observe “patient product results outside of clinical trial settings to more accurately demonstrate local outcomes.” Id. There is no mention of Medicaid or any government health programs. The details of the alleged conspiracy and agreements that are attached to the 4AC simply do not state with particularity that physicians agreed to be part of a scheme to defraud the government. Accordingly, to the extent the conspiracy claims are not dismissed on other grounds, Solvay’s motion to dismiss the conspiracy count is GRANTED.

D. Count IV: Federal FCA Retaliation

Fourth, SPI contends that the retaliation claims should be dismissed because the applicable limitations period is, at most, 180 days, yet King did not file his claim for over a year after the alleged retaliation against him, and Doe did not file her claim until approximately eight months after the alleged retaliation against her. Dkt. 122 at 31. Relators argue that the 180-day limitations period would frustrate the FCA’s provisions and the court should apply either a two-year statute of limitations from a Georgia statute that is analogous to the FCA or the two-year statute of limitations contained in section 16.003 of the Texas Civil Practices and Remedies Code. Dkt. 131 at 41-42.

In Graham County Soil & Water Conservation District v. United States ex rel. Wilson, the United States Supreme Court ruled that the six-year statute of limitations applying to FCA claims, in general, does not apply to FCA retaliation claims. 545 U.S. 409, 422 , 125 S.Ct. 2444 , 162 L.Ed.2d 390 (2005). Rather, the “most closely analogous state statute of limitations ... applies.” Id. The United States Supreme Court specifically noted which state statutes were likely the most closely analogous for several states, and, for Texas, it cited section 16.003 of the Texas Civil Practices and Remedies Code, which governs personal injuries, and section 554.005 of the Texas Government Code, which governs retaliation actions for whistle-blowers. Id. at 419 & n. 3, 125 S.Ct. 2444 .

Relators argue that the court must apply the most closely analogous statute of limitations of either Georgia, where the cause of action allegedly accrued, or Texas, where this case is pending, and they claim that the Supreme Court has not addressed which state to choose when the alleged retaliation took place outside of the forum state. Dkt. 131 at 41-42 & n. 32. SPI agrees that the court must apply the most closely analogous state statute, but it claims, citing a case relating to which stat *518 ute of limitations to use for 42 U.S.C. § 1983 claims, that the court should chose the forum state. Dkt. 139 at 21 (citing Cruz v. Louisiana ex rel. Dept. of Pub. Safety & Corr., 528 F.3d 375, 379 (5th Cir.2008). Relators argue that the case SPI cites is irrelevant because the forum state and the lex loci were both in Louisiana. Dkt. 140-1 at 16 (discussing Cruz, 528 F.3d at 378 )).

. The court finds that it should apply the law of Texas, the forum state. The court would not apply Georgia substantive law if the retaliation cause of action accrued in Georgia, because the FCA is, of course, a federal statute. The court would not apply Georgia procedural law to this case because federal courts apply federal procedural law. See All Plaintiffs v. All Defendants, 645 F.3d 329, 335 (5th Cir.2011). Thus, it does not make sense to borrow Georgia’s statute of limitations.

Since the court has decided to apply the most analogous Texas statute, it must determine which statute is most analogous. The FCA retaliation statute states: “Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment ... because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section ... shall be entitled to all relief necessary to make the employee whole.” 23 31 U.S.C. § 3730 (h) (2006). Relators argue that, if the court were to rely on Texas law, it should apply the two-year statute of limitations for personal injury claims, which is specifically mentioned by the Supreme Court in Graham. Dkt. 131 at 42. However, the Supreme Court also mentions the whistleblower statute, which has a 90 day statute of limitations. Graham, 545 U.S. at 419 n. 3, 125 S.Ct. 2444 (citing both Tex. Gov’t Code § 554.005 and Tex. Civ. Prac. & Rem.Code § 16.003 as potential analogous statutes);. Tex. Gov’t Code Ann. § 554.005 (Vernon 2002). SPI additionally suggests that the Texas healthcare whistleblower statute is most closely analogous to the FCA retaliation claim; the statute of limitation for the healthcare whistle-blower statute is 180 days. See Dkts. 122, 139; Tex. Health & Safety Code Ann. § 161.134 (h) (Vernon 2002).

This court, joining its sister court in United States ex rel. Smart v. Christus Health and the federal district court in the Northern District of Texas in United States ex rel. Wall v. Vista Hospice Care, Inc., will apply the 180 day statute of limitations contained in the Texas healthcare whistleblower statute. See United States ex rel. Wall v. Vista Hospice Care, Inc., 778 F.Supp.2d 709 (N.D.Tex.2011) (applying the 180 day statute of limitation in the Texas hospital whistleblower’s retaliation action in an FCA retaliation case and noting that the case would have the same result if the court were to apply the 90 day statute of limitations); United States ex rel. Smart v. Christus Health, 626 F.Supp.2d 647, 657 (S.D.Tex.2009) (Rainey, J.) (applying the 180 day statute of limitations in Texas Health & Safety Code § 161.134(h) to an FCA retaliation claim). The personal injury statute of limitations applies to trespass, conversion, taking or detaining personal property of others, forcible entry and detainer, forcible detainer, and personal injury resulting in death. Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (Vernon 2002). None of these causes of action relates in any way to a retaliation claim. The whistleblower statute with the 90-day statute of limitations, on the other hand, is directly on point as evidenced by the title of the chapter in *519 which it is contained: “Protection for Reporting Violations of Law.” See Tex. Gov’t Code Ann. § 554.005. Under this statute, a “state or local governmental entity may not suspend or terminate the employment of ... a public employee who in good faith reports a violation of law.” Id. § 554.002(a). The title of the healthcare whistleblower statute, which has a statute of limitations of 180 days, is also directly on point: “Retaliation Against Employees Prohibited.” See Tex. Health & Safety Code Ann. § 161.134 . This statute states that a “hospital, mental health facility, or treatment facility may not suspend or terminate the employment of ... an employee for reporting to the employee’s supervisor, ... a violation of law.” Id. § 161.134(a). Since the instant case involves alleged healthcare fraud and does not involve public employees, the healthcare whistleblower statute is the most closely analogous.

Under the 180 day statute of limitations, both King’s and Doe’s retaliation claims are untimely. Since an amendment to the complaint will not cure this deficiency, SPI’s motion to dismiss the retaliation claims is GRANTED, and the retaliation claims under the FCA are DISMISSED WITH PREJUDICE. Since the claims are time-barred, the court finds it unnecessary to address SPI’s argument that Relators have not pled facts demonstrating that King and Doe engaged in protected activity.

E. Counts V-XXXIII: Local Qui Tam Claims

SPI contends that Relators’ state and local qui tam claims should be dismissed for the same reasons the federal claims should be dismissed or, alternatively, if the court dismisses the federal claims, the court should decline to exercise pendant jurisdiction over the state claims. Dkt. 112 at 34. Since the court has not dismissed all of the federal FCA claims, it declines to dismiss the state of local claims on either of these theories. SPI, however, also asserts that each state claim is flawed for other reasons, which the court will address in turn. Dkt. 122 at 34.

1. City of Chicago (Count 33)

Before reaching the contested issues, the court notes that Relators concede that their claims on behalf of the City of Chicago (Count 33) should be dismissed. Dkt. 140-1 at 17. Thus, SPI’s motion to dismiss the claims based on the Chicago FCA is GRANTED, and Relators’ claims on behalf of the City of Chicago (Count 33) are DISMISSED WITH PREJUDICE.

2. Delaware and New Mexico (Counts 10 and 22)

SPI moves to dismiss Relators’ claims made under the Delaware and New Mexico FCAs (Counts 10 and 22, respectively), arguing that the Delaware and New Mexico FCAs permit a relator to continue a qui tam action in which the state does not intervene only if the appropriate authorities in those states issue a written determination that there is substantial evidence that a violation occurred. Dkt. 122 at 35-36. Under New Mexico Statute section 27-14-7(E)(2) (2004) (hereinafter, the “N.M. Substantial Evidence Section”), the New Mexico Government is required to either proceed with an FCA action filed by a qui tam relator or “notify the court and the person who brought the action that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action if the department determined that there is substantial evidence that a violation of the Medicaid False Claims Act has occurred.” Similarly, under Delaware Code title 6, section 1203(b)(4)(b) (2000) (hereinafter, the “Del. Substantial Evidence Section”), the Delaware Government is required to either elect to proceed with *520 the action or notify “the court that it declines to take over the action, in which case the private party bringing the action shall have the right to conduct the action if, pursuant to paragraph (2) of this subsection, the [Delaware] Attorney General determined that there is substantial evidence that a violation of this chapter has occurred.” Relators first contend that neither New Mexico nor Delaware has declined to intervene. Dkt. 131 at 36. However, on November 20, 2009, while this case was still under seal, the State of Texas filed a notice of non-intervention on behalf of several different states, including New Mexico and Delaware. Dkt. 50.

Relators next argue that the Delaware Substantial Evidence Section no longer applies because the Delaware General Assembly amended this section in 2009, and the new provision simply requires the Delaware Department of Justice to either proceed with the action or notify the court that it declines, “in which case the private party bringing the action shall have the right to conduct the action.” Del.Code tit. 6, § 1203(b)(3)(b) (2009). The amended statute, however, does not apply retroactively. See United States ex rel. Conrad v. GRIFOLS Biologicals Inc., No. RDB 07-3176, 2010 WL 2733321 , at *6 (D.Md. Jul. 9, 2010) (noting that under Delaware law, “retroactivity is a matter of legislative intent” and that Delaware courts will not infer such intent, and then dismissing a Delaware FCA qui tam action under the previous version of the statute). Thus, the court will apply the previous version of the Delaware statute.

There is no contention that the.Delaware Attorney General determined that there was substantial evidence that a violation of Delaware’s FCA occurred. However, SPI has failed to explain how dismissal under Rule 12(b)(6) is appropriate. The Substantial Evidence Section does not state that the Delaware Attorney General must notify the court of its determination regarding substantial evidence, and Relators are not required on a Rule 12(b)(6) motion to come forward with evidence. Relators could not have alleged in their complaint that the Delaware government had issued such a notice since the statute does not require such a notification until after the complaint is filed. SPI’s motion to dismiss the Delaware False Claims and Reporting Act claim (Count' 10) because the Delaware Attorney General has failed to provide notice that the Relators may proceed is DENIED.

Relators make no arguments with regard to SPI’s argument that Relators cannot maintain a claim under the New Mexico FCA unless the State intervenes or provides them with a statement of substantial evidence, with the exception of their erroneous argument that New Mexico has not declined to intervene. However, since, as with the Delaware statute, SPI has not explained how dismissal under this section is appropriate under Rule 12(b)(6), SPI’s motion to dismiss the New Mexico FCA claim (Count 22) as it relates to the alleged absence of a substantial evidence statement from New Mexico is DENIED.

SPI alternatively argues that the New Mexico FCA (§ 27-14-1 et seq.) only permits an “affected person” to bring a civil action, and that neither King, who is a resident of Virginia, nor Doe, who is a resident of Florida, could be affected by the New Mexico statute. 24 See N.M. Stat. *521 Ann.1978, § 27-14-7(B). SPI contends that since the term “affected person” is not defined in the statute, under New Mexico law, must be given its “common and ordinary meaning.” Dkt. 122 at 35 (citing Albuquerque Bernalillo Co. Water Util. Auth. v. NMPRC, 2010-NMSC-013 , 148 N.M. 21 , 229 P.3d 494, 519 (turning to the dictionary to find the “common and ordinary meaning” of the phrase “periodically fluctuate”)). Relators argue, however, that the court should apply the meaning of “affected person” from the Delaware False Claims and Reporting Act, which defines “affected person” as including employees and former employees of an entity liable under the Delaware False Claims and Reporting Act. 25 6 DeLCode § 1202(1) (2000). This is an extremely broad definition of the term when one considers its ordinary meaning, as it is hard to fathom how every employee of a nationwide firm could be affected by violations of New Mexico’s FCA. The court therefore declines to impose the Delaware General Assembly’s definition of “affected person” on the New Mexico- statute. Under the term’s ordinary meaning, “affected person” does not include Doe and King. Accordingly, they are not eligible to bring a claim under the New Mexico statute. SPI’s motion to dismiss the § 27-14-1 et seq. claims asserted in Count 22 (New Mexico) is GRANTED, and Relators’ claims under the New Mexico FCA are DISMISSED WITH PREJUDICE.

3. Texas, New Hampshire, and Maryland (Counts 20, 27, and 30)

SPI moves to dismiss Relators’ claims under the Texas, New Hampshire, and Maryland FCAs (Counts 20, 27, and 30, respectively), contending that the Texas, New Hampshire, and Maryland FCAs do not permit Relators to litigate FCA actions that those states have declined to take over. Dkt. 122 at 35. Relators argue that an amendment to the Texas statute makes dismissal of the Texas claims inappropriate, and that New Hampshire and Maryland have not yet declined to intervene, so relators may continue to pursue these claims. Dkt. 131 at 37. First, the court notes that both New Hampshire and Maryland have declined to intervene. See Dkt. 50 (Nov. 20, 2009) (notice of nonintervention of New Hampshire and several other states); Dkt. 138 (Feb. 17, 2011) (State of Maryland’s notice of election to decline intervention). Thus, the court must determine if the statutes of those states mandate dismissal after an election not to intervene. The court will address each state in turn.

a. Texas (Count 20)

The Texas FCA has been amended since the commencement of this lawsuit, and the amendment became effective on May 4, 2007. The version that was in effect at the time this lawsuit was filed required the court to dismiss the action if the State of Texas declined to take over the action. Tex. Human Res. Code Ann. .§ 36.104 (Vernon 2001). The new version of the statute states that if the State of Texas declines to take over the action, “the person bringing the action may proceed without the state’s participation.” Tex. Human Res. Code Ann. § 36.104 (Vernon Supp.. 2010) (amended May 4, 2007). SPI argues' that the claims in this case arose while the former version.of the statute was in place *522 and that the former version is therefore the version that should apply. Dkt. 139 at 23. Relators argue that (1) the State of Texas’s notice of non-intervention was filed after the statute was amended; (2) the notice does not mandate dismissal of the claims; and (3) some of Solvay’s conduct that allegedly violated the Texas FCA occurred after the 2007 amendment and cannot be divided from the conduct occurring before for the purposes of a motion to dismiss. Dkt. 131 at 37.

The 2007 amendments apply “only to conduct that occurs on or after the effective date ... of [the] Act. Conduct that occurs before the effective date of [the] Act is governed by the law in effect at the time the conduct occurred, and that law is continued in effect for that purpose.” Tex. Human Res. Code Ann. § 36.104 (Vernon Supp. 2010) (Historical and Statutory Notes). The “conduct” discussed in section 36.104 is the State of Texas’s election not to intervene. The State of Texas filed its amended notice of non-intervention on October 5, 2009. Dkt. 45. Thus, the “conduct” occurred after the statute was amended. At the point the State of Texas declined to intervene, thus triggering section 36.104(b), the section allowed a qui torn relator to proceed without the State of Texas’ participation. Therefore, the relevant Texas statute does not prohibit Relators from maintaining an action on Texas’ behalf, and SPI’s motion to dismiss the Texas FCA claims (Count 20) on this basis is DENIED.

b. New Hampshire (Count 27)

The New Hampshire statute has likewise been amended since this lawsuit commenced. The version in effect when the action commenced stated that the action should be dismissed if the state dedined to intervene. See N.H.Rev.Stat. § 167:61-c(II)(e) (2004). The amended version, which was enacted on June 29, 2009, states that “the relator who initiated the proceeding may conduct the action” if the State of New Hampshire declines to intervene. N.H.Rev.Stat. § 167:61-c(II)(e) (2009). The bill amending this section indicates that the act would “take effect upon its passage.” S.B. 174, 161st Leg., 1st Sess. Gen. Ct. (N.H. 2009). Thus, the amendment is not retroactive. However, New Hampshire declined to intervene on November 20, 2009, which is after the new section took effect. Like the Texas section at issue, the New Hampshire section at issue is triggered once the state declines to intervene. Thus, it was only triggered after the amendment to the statute. Accordingly, SPI’s motion to dismiss the claims on behalf of New Hampshire (Count 27) on this basis is DENIED.

c. Maryland (Count 30) 26

The Maryland Code of Health-General section 2-604(a)(7) states: “If the State does not elect to intervene and proceed with the action ... before unsealing the complaint, the court shall dismiss the action.” Md.Code Ann. Health-Gen. § 2-604(a)(7) (West 2011). Here, the State of Maryland did not elect to intervene before the complaint was unsealed and, in fact, declined to intervene after the complaint was unsealed. See Dkt. 138. In its election not to intervene, the State of Maryland stated that it was notifying the court pursuant to section 2 — 604(a)(6)(ii) of its Code of Health-General, and that it was reserving its rights under section 2-603 of its False Health Claims Act to intervene at a later date upon a showing of good cause. Id. Subsection 2 — 604(a)(6)(H) simply indicates that the State of Maryland must *523 notify “the court that it will not intervene and proceed with the action” if it does not elect to intervene. Md.Code Ann. Health-Gen. § 2 — 604(a) (6) (ii). The relevant portion of section 2-603 states that the State of Maryland may file a civil action if it “finds that a person has violated or is violating § 2-602(a)” of the Maryland False Health Claims Act. Md.Code Ann. Health-Gen. § 2-603(a). 27 SPI’s motion to dismiss the claims against Maryland in accordance with the plain language of section 2-604(a)(7) is GRANTED. Relators’ claims on behalf of the State of Maryland (Count 30) are DISMISSED.

4. Fraud Occurring Before a State’s FCA Enactment.

SPI moves to dismiss each state claim to the extent it is based on allegedly fraudulent claims submitted prior to the state FCAs’ effective dates. Dkt. 122 at 36. SPI specifically contends that sixteen (16) of the state counts involve a statute postdating some of all of the alleged misconduct that either is silent or explicitly forbids retroactive application — Colorado (effective 5/26/10, silent on retroactivity), Connecticut (effective 10/5/09, silent on retroactivity), Delaware- (6/30/00, silent on retroactivity), Georgia (effective 5/24/07, silent on’ retroactivity), Hawaii (effective 5/26/00, silent on retroactivity), Indiana (effective 5/11/05, silent on retroactivity), Minnesota (effective July 1, 2010, silent on retroactivity), Montana (effective 10/1/05, applies after 10/1/05), New Hampshire (effective 1/1/05, applies after 1/1/05), New Jersey (effective 3/13/08, silent on retroactivity), New Mexico (effective 5/19/04,- silent ás to retroactivity),'New York (4/1/07, silent as to retroactivity), Oklahoma (11/1/07, silent as to retroactivity), Rhode Island (effective 2/15/08, silent as to retro-activity), Virginia (effective 1/1/03, silent as to retroactivity), and Chicago (12/15/04, silent as to retroactivity). Dkt. 122 at 36-37 & Exh. A. Relators concede some of these points, but they argue that North Carolina and Maryland specifically allow for retroactive application of their statutes if the limitations period has not run and that the state FCAs that are silent with regard to retroactivity should be applied retroactively. Dkt. 131 at 38. Relators also generally allege that each state FCA claim is an “indivisible claim that may not be carved up.” Dkt. 131 at 39. Relators cite an unpublished decision from the District of South Dakota for this proposition. Id. (citing Janis v. Nelson, No. CR. 09-5019-KES, 2009 WL. 4505935, at *7 (D.S.D. Nov. 24, 2009)). In that case, the plaintiff sought to dismiss the type of relief sought in each count, not simply portions of the claims. Jams, 2009 WL 4505935 , at *6. Here, SPI requests dismissal of a portion of the substantive claim. Dismissing these portions of the substantive claims, to the extent dismissal is warranted, helps streamline the issues, making preparation for trial easier on all parties. Thus, the court does not find Relators’ argument that it should not dismiss portions of the claims persuasive.

The court will first discuss the parties’ general arguments with regard to retroactivity, and it will then specifically address the claims under the state FCAs that are addressed in the parties’ briefing. 28

*524 a. Retroactivity, in General

Relators argue that the state FCAs in Delaware, Georgia, Hawaii, Massachusetts, New Jersey, New Mexico, New York, Oklahoma, Rhode Island, and Virginia should be applied retroactively since the statutes are silent on retroactivity. Dkt. 131 at 38. Relators contend that the statutes that are silent on the issue of retroactivity should be applied retroactively if doing so is not contrary to express legislative history or does not result in manifest injustice. Dkt. 131 at 38. Relators rely on Bradley v. School Board of City of Richmond, 416 U.S. 696, 711 , 94 S.Ct. 2006 , 40 L.Ed.2d 476 (1974), for this argument. Dkt. 131 at 38-39. Solvay contends that the Supreme Court directly rejected Relators’ reading of Bradley in Landgraf v. USI Film Products, 511 U.S. 244 , 114 S.Ct. 1483 , 128 L.Ed.2d 229 (1994). Dkt. 139 at 24. Additionally, Solvay argues that the Supreme Court has refused to read retroactivity into the federal FCA at least twice. Id. (citing Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson , — U.S. —, 130 S.Ct. 1396 , 1400 n. 1, 176 L.Ed.2d 225 (2010)) (noting that the PPACA legislation made “no mention of retroactivity, which would be necessary for its application to pending cases given that it eliminates petitioners’ claimed defense to a qui tarn suit”); Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 950 , 117 S.Ct. 1871 , 138 L.Ed.2d 135 (1997) (noting that the 1986 amendment, which spoke “to the substantive rights of the parties,” “is as much subject to [the Court’s] presumption against retroactivity as any other”).

The United States Supreme Court, in Bradley , “anchored] its holding ... on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” 416 U.S. 696, 711 , 94 S.Ct. 2006 , 40 L.Ed.2d 476 (1974). The court rejected “the contention that a change in the law is to given effect in a pending case only where that is the clear and stated intention of the legislature.” Id. at 715 , 94 S.Ct. 2006 . The court declined to hold that “courts must always ... apply new laws to pending cases in the absence of clear legislative direction to the contrary,” but noted that since the legislative history of the statute in question could be supportive of either position (applying the new law or the old), “it would seem to provide at least implicit support for the application of the statute to pending cases.” Id. at 716 , 94 S.Ct. 2006 .

In Landgraf , the Supreme Court “clarified the circumstances in which a new statute which itself does not explicitly state whether it applies to pending cases should be applied retroactively.” Hartford Cas. Ins. Co. v. F.D.I.C., 21 F.3d 696, 700 (5th Cir.1994) (citing Landgraf, 511 U.S. 244 , 114 S.Ct. 1483 ). The Landgraf Court noted that it “did not intend to displace the traditional presumption against applying statutes affecting substantive rights, liabilities, or duties to conduct arising before their enactment” with the Bradley decision. 511 U.S. at 278 , 114 S.Ct. 1483 . It noted that although the language in Bradley “suggests a categorical presumption in favor of application of all new rules of law,” it was making “clear” with the Landgraf decision “that Bradley did not alter the well-settled presumption against application of the class of new statutes that *525 would have genuinely ‘retroactive’ effect.” Id. at 277, 114 S.Ct. 1483 .

Thus, the Landgraf Court enunciated the following standard:

When a case implicates a federal statute enacted after the events in a suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, ie., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption, teaches that it does not govern absent clear congressional intent favoring such a result.

Id. at 280 , 114 S.Ct. 1483 .

Relators claim that retroactive application of the state FCAs does not impair any of Solvay’s rights, increase Solvay’s liability, or impose new duties, and that the court should thus apply them retroactively in accordance with the Bradley decision. Dkt. 140-1 at 17-18. The Landgraf Court, however, instructed that courts must determine first whether Congress expressly made the statute retroactive and, if not, if the statute would have retroactive effect. Applying the State FCAs that were not in effect at the time the events giving rise to this lawsuit occurred would certainly have retroactive effect — Solvay would be held accountable for conduct that occurred at a time when it had no notice that such conduct would be in violation of the State FCAs at issue, since they were not even enacted yet. Thus, under Landgraf the new FCAs should not be applied unless there is clear legislative guidance that it is proper to do so.

However, in both Bradley and Landgraf the United States Supreme Court was discussing whether it was appropriate to apply federal statutes retroactively. Here, the issue is whether state statutes should be given retroactive effect when the state legislatures did not provide any guidance. Thus, the court must consider how each state or locality at issue treats retroactivity issues.

b. Chicago, New Hampshire, and Montana

Since the court already dismissed the Chicago claims on other grounds, it will not address SPI’s argument that the Chicago claims occurring before the statute .was enacted should be dismissed. Relators concede that the Montana FCA applies only to claims submitted after October 1, 2005 and that the New Hampshire FCA applies only to claims submitted after January 1, 2005. Id. Thus, the alleged violations, of the Montana FCA occurring before October 1, 2005 and the alleged violations of the New. Hampshire FCA occurring after Januáry ■ 1, 2005 are DISMISSED WITH PREJUDICE,

c. Delaware, Georgia, Hawaii, Indiana, Massachusetts, New Jersey, New Mexico, New York, Oklahoma, Rhode Island, and Virginia

SPI argues that Relators’ claims with regard to alleged violations occurring before the enactment of state FCAs for sixteen state that are either silent of expressly forbid retroactive application should be dismissed. Dkt. 122 at 37. -Relators argue that ten of these states, Delaware, Georgia, Hawaii, Indiana, - New Jersey, New Mexico, New York, Oklahoma, Rhode Island, and Virginia, plus one state FCA not specified by SPI, Massachusetts, are all silent, on retroactivity and should be *526 applied retroactively as long as no manifest injustice results.

i) Delaware (Count 10). “In Delaware, there is a ‘presumption against retroactivity.’ Laws apply retroactively only where the General Assembly has made its intent plain and unambiguous.” A.W. Fin. Servs., S.A. v. Empire Res., Inc., 981 A.2d 1114, 1120 (Del.2009) (quoting State ex rel. Brady v. Pettinaro Enter., 870 A.2d 513, 529 (Del.Ch.2005)). The Delaware False Claims and Reporting Act was enacted on June 30, 2000. Del.Code Ann. tit. 6, § 1201 (West, Westlaw current through 78 Laws 2011, chs. 1-104) (credits); 2000 Del. Laws Ch. 370 (H.B. 543) (West). Its prohibitions mirror the federal FCA and other state FCAs. See Del.Code. Ann. tit. 6, § 1201 et seq. It is silent regarding whether it is retroactive. Thus, the presumption against retroactivity applies. SPI’s motion as it relates to the enactment of the Delaware statute is GRANTED. Relators’ claims under the Delaware statute, to the extent they are based on alleged fraudulent claims for payment or approval or alleged false records or statements made to get a false or fraudulent claim paid or approved by the Delaware government prior to the enactment date of the Delaware False Claims and Reporting Act, July 30, 2000, are DISMISSED WITH PREJUDICE.

ii) Georgia (Count 16). In Georgia, “legislation which involves mere procedural or evidentiary changes may operate retrospectively; however, legislation which affects substantive rights may only operate prospectively.” Fowler Props., Inc. v. Rowland, 282 Ga. 76 , 646 S.E.2d 197, 200 (2007). In fact, the Georgia Constitution states, “No bill of attainder, ex post facto law, retroactive law, or laws impairing the obligation of contract or making irrevocable grant of special privileges or immunities shall be passed.” Ga. Const. art. 1, § 1, ¶ X. The Georgia False Medicaid Claims Act was effective on May 24, 2007. Ga.Code Ann. § 49-4-168.1 (West, Westlaw through 2011 Reg. Sess.). It parallels the federal statute, making any person who “[k]nowingly presents or causes to be presented to the Georgia Medicaid program a false or fraudulent claim for payment or approval,” who “[k]nowingly makes, uses, or causes to be made or used a false record or statement to get a false or fraudulent claim paid or approved by the Georgia Medicaid program;” or “[c]onspires to defraud the Georgia Medicaid program by getting a false or fraudulent claim allowed or paid,” liable to the State of Georgia. 29 Id. Because the Georgia statute was not enacted until May 24, 2007, and cannot apply retroactively, SPI’s motion relating to the enactment of the Georgia False Medicaid Claims Act is GRANTED, and Relators’ claims based on the Georgia statute, to the extent they request relief for alleged false or fraudulent claims, records, or statements made prior to May 24, 2007, are DISMISSED WITH PREJUDICE.

iii) Hawaii (Count 13). The Hawaii Supreme Court, in Taniguchi v. Association of Apartment Owners of King Manor, Inc., noted that “it is well settled that ‘all statutes are to be construed as having only a prospective operation unless the purpose and intention of the legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used.’ ” 114 Hawai’i 37, 155 P.3d 1138 , 1149 (Haw.2007) (quoting Robinson v. Bailey, 28 Haw. 462, 464 (1925)). The Hawaii version of the FCA was enacted on *527 May 26, 2000, and the Hawaii Legislature noted that it would “take effect upon its approval.” 2000 Haw. Laws Act 126 (S.B. 2115). Under the act, “any person who ... [kjnowingly presents, or causes to be presented, to an officer or employee of the State a false or fraudulent claim for payment or approval; [k]nowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the State; [or] [c]onspires to defraud the State by getting a false or fraudulent claim allowed or paid;” shall be liable to the State of Hawaii. Haw.Rev.Stat. § 661 — 21(a)(1)-(3) (West, Westlaw current through Act 235 of the 2011 Reg. Sess.). Since this act was not enacted until May 26, 2000, and it not retroactive, SPI’s motion to dismiss as it relates to the enactment of the Hawaii statute is GRANTED, and Relators’ claims under the Hawaii statute, to the extent they are based on any alleged false claim presented, false record or statement made, or conspiracy entered into before May 26, 2000, are DISMISSED WITH PREJUDICE.

iv) Indiana (Count 17). In Indiana, “absent an express indication otherwise, [courts applying Indiana law] presume that the legislature intended that the statute be applied prospectively only.” Robinson v. Valladares, 738 N.E.2d 278, 281 (Ind.Ct.App.2000). The Indiana legislature enactéd the Indiana False Claims and Whistleblower Protection statute on May 11, 2005, and the legislature noted' th

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