The State of New Jersey Ex Rel. Health Choice Group, LLC v. Bayer Corporation

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-2731-20

A-2733-20

THE STATE OF NEW JERSEY

ex rel. HEALTH CHOICE

GROUP, LLC,

APPROVED FOR PUBLICATION

Plaintiff-Appellant,

March 1, 2024

APPELLATE DIVISION

v.

BAYER CORPORATION and

BAYER HEALTHCARE

PHARMACEUTICALS, INC.,

Defendants-Respondents.

____________________________

THE STATE OF NEW JERSEY

ex rel. HEALTH CHOICE

ALLIANCE, LLC,

Plaintiff-Appellant,

v.

ELI LILLY AND COMPANY,

INC.,

Defendant-Respondent.

____________________________

Argued November 14, 2023 – Decided March 1, 2024

Before Judges Gilson, Berdote Byrne, and Bishop-

Thompson.

On appeal from the Superior Court of New Jersey, Law

Division, Middlesex County, Docket Nos. L-3311-20

and L-3312-20.

Radu A. Lelutiu (McKool Smith PC) of the New York

bar, admitted pro hac vice, and Ruby Khallouf argued

the cause for appellant Health Choice Group, LLC, in

A-2731-20 and appellant Health Choice Alliance, LLC,

in A-2733-20 (Florio Perrucci Steinhardt Cappelli

Tipton & Taylor, LLC, Radu A. Lelutiu, W. Mark

Lanier (The Lanier Law Firm) of the Texas bar,

admitted pro hac vice, Zeke DeRose III (The Lanier

Law Firm) of the Texas bar, admitted pro hac vice, and

Eric B. Halper (McKool Smith PC) of the New York

bar, admitted pro hac vice, attorneys; Brian Russell

Tipton, Ruby Khallouf, W. Mark Lanier, Zeke DeRose

III, Eric B. Halper, and Radu A. Lelutiu, of counsel and

on the briefs).

Lawrence S. Lustberg argued the cause for respondents

Bayer Corporation and Bayer Healthcare

Pharmaceuticals, Inc., in A-2731-20 (Gibbons PC,

Matthew J. O’Connor (Covington & Burling LLP) of

the District of Columbia and Massachusetts bars,

admitted pro hac vice, Matthew F. Dunn (Covington &

Burling LLP) of the District of Columbia and Maryland

bars, admitted pro hac vice, and Kristin M. Cobb

(Covington & Burling LLP) of the District of Columbia

and Virginia bars, admitted pro hac vice, attorneys;

Lawrence S. Lustberg, Matthew J. O'Connor, Matthew

F. Dunn, and Kristin M. Cobb, of counsel and on the

brief).

Allon Kedem (Arnold & Porter Kaye Scholer LLP) of

the District of Columbia and New York bars, admitted

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2

pro hac vice, argued the cause for respondent Eli Lilly

and Company, Inc., in A-2733-20 (Faegre Drinker

Biddle & Reath LLP, Michael A. Rogoff (Arnold &

Porter Kaye Scholer LLP) of the New York bar,

admitted pro hac vice, Sara L. Shudofsky (Arnold &

Porter Kaye Scholer LLP) of the New York bar,

admitted pro hac vice, and Debra E. Schreck, attorneys;

Jeffrey S. Jacobson, Michael Charles Zogby, Michael

A. Rogoff, Sara L. Shudofsky, and Debra E. Schreck,

of counsel and on the brief).

The opinion of the court was delivered by

GILSON, P.J.A.D.

These two appeals, which we consolidate for purposes of this opinion,

arise out of separate, but similar, qui tam lawsuits filed by plaintiffs Health

Choice Group, LLC (HCG) and Health Choice Alliance, LLC (HCA)

(collectively, plaintiffs or Relators) on behalf of the State of New Jersey. HCG

sued defendants Bayer Corporation and Bayer Healthcare Pharmaceuticals, Inc.

(collectively, Bayer), and HCA sued Eli Lilly and Company, Inc. (Lilly).

Plaintiffs alleged that Bayer and Lilly (collectively, defendants) had violated the

New Jersey False Claims Act (NJFC Act), N.J.S.A. 2A:32C-1 to -15, -17 to -18,

by engaging in unlawful marketing schemes that caused false claims to be

submitted to and paid by government-funded healthcare programs.

Defendants moved to dismiss plaintiffs' complaints on several grounds,

including under Rule 4:6-2(e) and Rule 4:5-8(a). The trial court granted those

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3

motions, holding that plaintiffs' claims were barred by the public disclosure and

first-to-file provisions in the NJFC Act. The trial court also ruled that plaintiffs

had failed to plead fraud with the particularity required by Rule 4:5-8(a).

Plaintiffs appeal from the orders dismissing their complaints with prejudice.

Because the allegations in plaintiffs' complaints had previously been public ly

disclosed and because plaintiffs were not the original source of that information,

we hold that plaintiffs' complaints were properly dismissed under the public

disclosure bar of the NJFC Act. See N.J.S.A. 2A:32C-9(c). Accordingly, we

affirm on that basis and do not address the alternative grounds for the dismissals.

I.

Plaintiffs are subsidiaries of the National Health Care Analysis Group (the

NHCA Group), a partnership of limited liability companies established by

investors and former bankers "for the purpose of filing qui tam actions alleging

instances of fraud in medicine and pharmaceuticals." United States ex rel.

Health Choice All., L.L.C. v. Eli Lilly & Co., 4 F.4th 255, 259 (5th Cir. 2021)

(italicization omitted). The federal False Claims Act (FCA), 31 U.S.C. §§ 3729-

33, and similar state statutes, including the NJFC Act, permit private persons,

called "relators," to bring qui tam suits on behalf of the government and, if the

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relators prove that false claims were paid by the government, receive a portion

of any recovery. 31 U.S.C. § 3730(b), (d)(2); N.J.S.A. 2A:32C-5(b), -7(d).

In June 2017, plaintiffs filed separate, sealed qui tam actions against

Bayer and Lilly in the United States District Court for the Eastern District of

Texas (the Federal Actions). Both actions were filed on behalf of the United

States and thirty-one states, including New Jersey, and alleged that defendants

had violated the FCA and similar state false claims statutes, including the NJFC

Act. At approximately the same time, affiliates of plaintiffs filed numerous

other qui tam actions against other pharmaceutical companies based on similar

allegations.1

In the Federal Actions, plaintiffs alleged that Bayer and Lilly had used

unlawful marketing schemes to induce healthcare providers to prescribe their

drugs, thereby causing billions of dollars of false claims to be submitted to and

paid by government-administered programs, primarily Medicaid and Medicare.

Plaintiffs represented in their complaints that agents of the NHCA Group had

conducted multi-part investigations, which included interviewing various

1

Another subsidiary of the NHCA Group sued Gilead Sciences, Inc. first in the

federal Eastern District of Texas and later in New Jersey. In a separate

unpublished opinion, we have affirmed the dismissal of the claims against

Gilead. See State ex rel. Health Choice Advocs., LLC v. Gilead Scis., Inc., No.

A-2736-20 (App. Div. 2024).

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5

individuals who were familiar with defendants' practices and examining

Medicare and Medicaid data for defendants' products. Through those

investigations, plaintiffs contend they discovered that Bayer and Lilly were

engaging in three marketing schemes that violated the FCA and the NJFC Act.

The first two schemes involved providing free nurse services (the "Free

Nurse Scheme") and reimbursement support services (the "Support Services

Scheme") to healthcare providers who wrote prescriptions for Bayer's and Lilly's

drugs. Bayer and Lilly allegedly allowed prescribers who prescribed their drugs

to use free "nurse educators" to provide follow-up care and monitoring for

patients, thereby relieving the prescribers of the responsibility to provide those

services. Bayer and Lilly also allegedly provided free support services to assist

providers who prescribed patients their drugs. These services assisted providers

with determining and obtaining insurance coverage for patients for the cost of

the drugs and obtaining prior authorization. Plaintiffs asserted that those free

services induced providers to prescribe Bayer's and Lilly's drugs over

competitors' drugs and caused false claims to be submitted to and paid for by

government programs.

In the third scheme, Bayer and Lilly allegedly used registered nurses to

promote their drugs (the "White Coat Marketing Scheme"). The registered

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6

nurses, who were independent contractors, used their professional credentials to

gain access to providers. Bayer and Lilly allegedly paid those nurses to

recommend their drugs, and plaintiffs alleged that those payments were illegal

kickbacks.

In October 2017, the United States and all named states, including New

Jersey, declined to intervene in the Federal Actions, and the complaints were

then unsealed and served on Bayer and Lilly. Shortly thereafter, Bayer and Lilly

moved to dismiss the claims in the Federal Actions. Plaintiffs then filed an

amended complaint, and defendants again moved to dismiss.

Before the federal court ruled on defendants' motions, the United States

moved to dismiss the Federal Actions. The United States offered two reasons

to support its request for dismissal: (1) "the allegations . . . lack[ed] sufficient

merit to justify the cost of investigation and prosecution[;]" and (2) "further

litigation . . . [would] undermine practices that benefit federal healthcare

programs by providing patients with greater access to product education and

support." Eli Lilly, 4 F.4th at 267. The United States also asserted that the drug

education services provided by Bayer and Lilly "benefit[ed] federal healthcare

programs" and were lawful. Id. at 268. New Jersey took no position on the

United States' motion to dismiss the Federal Actions.

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7

In September 2019, the court overseeing the Federal Actions dismissed

with prejudice plaintiffs' FCA claims but dismissed without prejudice plaintiffs'

state law claims, including the claims based on the NJFC Act. Shortly thereafter,

plaintiffs appealed the dismissal of their FCA claims. They did not challenge

the dismissal without prejudice of their state law claims.

In July 2021, the United States Court of Appeals for the Fifth Circuit

affirmed the dismissal of the FCA claims against Bayer and Lilly in the Federal

Actions. Id. at 269. The Fifth Circuit held that the United States' dismissal of

the action was proper, id. at 267, and plaintiffs did not show the government had

acted arbitrarily, capriciously, or illegally in seeking the dismissal, id. at 269.

In October 2019, while the Federal Actions were on appeal, plaintiffs filed

these two qui tam actions under seal on behalf of the State of New Jersey. When

New Jersey declined to intervene, both complaints were unsealed in April 2020.

The complaints filed in New Jersey alleged the same marketing schemes

identified in the Federal Actions and contended that those schemes resulted in

false claims being submitted to and paid by New Jersey in violation of the NJFC

Act. In that regard, plaintiffs' complaints against Bayer and Lilly filed in New

Jersey were based on the Free Nurse Scheme, the Support Services Scheme, and

the White Coat Marketing Scheme.

A-2731-20

8

Bayer and Lilly moved to dismiss plaintiffs' complaints under Rule 4:46-

2 on three grounds. They argued that the claims filed in New Jersey were (1)

barred by the public disclosure provision in the NJFC Act, N.J.S.A. 2A:32C-

9(c); (2) barred by the first-to-file provision, N.J.S.A. 2A:32C-5(i); and (3)

inadequate because they did not plead fraud with the particularity required by

Rule 4:5-8(a). The trial court heard arguments on both motions to dismiss.

On April 22, 2021, the trial court issued two orders and a consolidated

opinion granting Bayer's and Lilly's motions to dismiss with prejudice. The trial

court based its rulings on three grounds. First, the court found that the

allegations in plaintiffs' complaints filed in New Jersey were based on

transactions previously publicly disclosed in the Federal Actions, as well as in

newspaper articles. The court then determined that plaintiffs did not qualify as

the original source of the information as required by the NJFC Act. See N.J.S.A.

2A:32C-9(c).

Second, the trial court held that plaintiffs' complaints should be dismissed

under the NJFC Act's first-to-file bar. That bar prohibits a plaintiff from

bringing a related action based on facts underlying a pending NJFC Act action.

N.J.S.A. 2A:32C-5(i). The trial court found that the allegations in the

complaints filed in New Jersey were like the allegations in the then-pending

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Federal Actions. In that regard, the trial court issued its rulings several months

before the Fifth Circuit affirmed the dismissal of the federal FCA claims in the

Federal Actions.

Finally, the trial court found that both complaints failed to plead fraud

with the specificity required by Rule 4:5-8(a). In particular, the trial court noted

that plaintiffs' complaints failed to allege specific facts showing that the schemes

increased prescriptions of Bayer and Lilly products or that any prescriptions

were issued for reasons other than valid medical reasons.

Plaintiffs filed separate appeals from the orders dismissing their New

Jersey complaints with prejudice.

II.

In both appeals, plaintiffs make the same three arguments. They contend

that the trial court erred in holding that (1) the public disclosure bar applied; (2)

the first-to-file bar applied; and (3) the complaints failed to plead fraud with

particularity. Regarding their arguments about pleading fraud with particularity,

plaintiffs contend that the court compounded its error by dismissing the

complaints with prejudice because they should have been allowed to amend their

complaints.

A-2731-20

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Appellate courts review orders granting motions to dismiss for failure to

state a claim under a de novo standard. Baskin v. P.C. Richard & Son, LLC,

246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus, Goldin, Foley,

Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019)). In doing so, we

"examine 'the legal sufficiency of the facts alleged on the face of the complaint,'

giving the plaintiff the benefit of 'every reasonable inference of fact.'" Ibid.

(quoting Dimitrakopoulos, 237 N.J. at 107). "The complaint must be searched

thoroughly 'and with liberality to ascertain whether the fundament of a cause of

action may be gleaned even from an obscure statement of claim, opportunity

being given to amend if necessary.'" Ibid. (quoting Printing Mart-Morristown

v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)).

We hold that the complaints were properly dismissed with prejudice under

the NJFC Act's public disclosure bar. In that regard, we point out that the public

disclosure bar involves a question of standing. Relators lack standing to bring

claims under the NJFC Act when the claims are based on allegations or

transactions that have already been publicly disclosed and the relators were not

the original source of the information. See Brennan v. Lonegan, 454 N.J. Super.

613, 620 (App. Div. 2018).

A-2731-20

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Standing "involves a threshold determination of the court's power to hear

the case." Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 418

(1991). Although our courts "have historically taken a much more liberal

approach on the issue of standing than have the federal cases," Crescent Park

Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 101 (1971), the

public disclosure bar in the NJFC Act uses the word "shall," which denotes that

it is a mandatory bar when applicable. See Aponte-Correa v. Allstate Ins. Co.,

162 N.J. 318, 325 (2000) (explaining that a statute's use of "shall" generally

means that the statutory provision is mandatory).

"Whether a party has standing to pursue a claim is a question of law

subject to de novo review." Cherokee LCP Land, LLC v. City of Linden Plan.

Bd., 234 N.J. 403, 414 (2018); accord Brennan, 454 N.J. Super. at 618. An

appellate court therefore owes no "special deference" to the "trial court's

interpretation of the law and the legal consequences that flow from established

facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995).

A. The NJFC Act.

The NJFC Act imposes civil penalties on any person who "[k]nowingly

presents . . . a false or fraudulent claim for payment or approval." N.J.S.A.

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2A:32C-3(a). The NJFC Act is modeled on the FCA and is intended to protect

the government, and ultimately taxpayers, from paying false claims. See State

ex rel. Hayling v. Corr. Med. Servs., Inc., 422 N.J. Super. 363, 372 (App. Div.

2011) (quoting Assemblyman Herb Conaway, Jr., who described the NJFC Act

to the Assembly Judicial Committee "as New Jersey's [whistleblower] statute

which tracks the federal law that allows private individuals . . . to sue on behalf

of the government to recover the losses to the public"). A "claim" is defined to

include a request or demand for money, property, or services that is "made to

any employee, officer, or agent of the State" if the State provides any portion of

the money, property, or services requested. N.J.S.A. 2A:32C-2.

The NJFC Act precludes actions by private persons based on allegations

or transactions that have previously been publicly disclosed, unless "the person

bringing the action is an original source of the information." N.J.S.A. 2A:32C -

9(c). In construing the FCA, the United States Supreme Court has held that the

"original source" language was "an effort to strike a balance between

encouraging private persons to root out fraud and stifling parasitic lawsuits."

Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson,

559 U.S. 280, 295 (2010). Because our Legislature has adopted "essentially the

same 'original source' language" for the NJFC Act, we have previously

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concluded "our Legislature likewise intended to avoid 'parasitic lawsuits' based

on publicly disclosed information." Brennan, 454 N.J. Super. at 620.

B. The 2023 Amendment to the NJFC Act.

In 2023, the New Jersey Legislature amended several sections of the NJFC

Act, including the definition of "original source." L. 2023, c. 73. So, the initial

question we must decide is which definition applies to plaintiffs' actions, which

were brought in 2019, dismissed by the trial court in 2021, and are currently on

appeal. That question, in turn, depends on whether the 2023 amendments apply

retroactively.

When the Legislature first adopted the NJFC Act in 2008, it used

substantially the same "original source" definition that was used in the FCA.

Brennan, 454 N.J. Super. at 620. Thus, "original source" was defined as "an

individual who has direct and independent knowledge of the information on

which the allegations are based and has voluntarily provided the information to

the State before filing an action under this act based on the information."

N.J.S.A. 2A:32C-9(c) (2008).

In 2010, Congress amended the FCA and defined "original source" to

mean:

[A]n individual who either (i) prior to a public

disclosure under subsection (e)(4)(a), has voluntarily

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disclosed to the Government the information on which

allegations or transactions in a claim are based, or (2)

who has knowledge that is independent of and

materially adds to the publicly disclosed allegations or

transactions, and who has voluntarily provided the

information to the Government before filing an action

under this section.

[31 U.S.C. § 3730(e)(4)(B).]

As noted, in 2023, our Legislature amended the definition of "original

source" to track the federal definition. Consequently, original source is now

defined to mean:

[A]n individual who either (1) prior to a public

disclosure as described in this paragraph has

voluntarily disclosed to the State the information on

which allegations or transactions in a claim are based,

or (2) has knowledge that is independent of and

materially adds to the publicly disclosed allegations or

transactions, and who has voluntarily provided the

information to the State before filing an action under

this act.

[N.J.S.A. 2A:32C-9(c).]

In the related legislative history, the Assembly explained it was revising

the NJFC Act "to comply with certain provisions in federal law" because

"[c]ompliance would make the State eligible for greater recoveries in Medicaid

fraud cases." Assemb. Budget Comm. Statement to A. 5584 (June 27, 2023).

The Assembly explained that,

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[u]nder federal law, a state is entitled to enhanced

recovery in Medicaid fraud cases if the Inspector

General in the federal Department of Health and Human

Services determines that the state has a False Claims

Act that is "at least as effective" as the [FCA] in

facilitating these whistleblower actions. Presently, the

Inspector General has determined that the [NJFC Act]

is not "at least as effective" as the [FCA], and has

recommended specific revisions. This bill would

implement the Inspector General's recommendations.

[Ibid.]

The Legislature adopted the amendments on June 30, 2023, and stated that they

were to "take effect immediately." L. 2023, c. 73, § 11.

"Settled rules of statutory construction favor prospective rather than

retroactive application of new legislation." Pisack v. B & C Towing, Inc., 240

N.J. 360, 370 (2020) (quoting James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563

(2014)); see also Twiss v. State, Dep't of the Treasury, 124 N.J. 461, 466 (1991)

(explaining that "[g]enerally, courts favor prospective application of statutes").

"In determining whether a statute applies retroactively," the primary goal is to

determine whether the Legislature intended the amendment to be prospective or

retrospective in application. Pisack, 240 N.J. at 370; Twiss, 124 N.J. at 466-67.

Accordingly, our Supreme Court has explained that there are "three scenarios

that justify retroactive application of a legislative amendment: '(1) when the

Legislature expresses its intent that the law apply retroactively, either expressly

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or implicitly; (2) when an amendment is curative; or (3) when the expectations

of the parties so warrant.'" Pisack, 240 N.J. at 370 (quoting James, 216 N.J. at

563); see also Gibbons v. Gibbons, 86 N.J. 515, 522 (1981) (explaining that

amendments will be applied retroactively when it is "necessary to make the

statute workable or to give it the most sensible interpretation").

The 2023 amendments to the NJFC Act used language clearly indicating

that the Legislature intended the amendments to apply prospectively. In that

regard, the Legislature stated that the amendments "shall take effect

immediately." L. 2023, c. 73, § 11. "Our Supreme Court has consistently held

that an amendment that is to take effect immediately is to be applied only

prospectively." State v. Rosado, 475 N.J. Super. 266, 276 (App. Div. 2023); see

also Pisack, 240 N.J. at 371 (explaining that "the Legislature provided that the

2018 amendatory legislation 'shall take effect immediately.' Those 'words

bespeak an intent contrary to, and not supportive of, retroactive application.'"

(internal citation omitted) (quoting Cruz v. Cent. Jersey Landscaping, Inc., 195

N.J. 33, 48 (2008))).

The amendments to the NJFC Act were also not curative. Although the

amendments were designed to bring the NJFC Act into compliance with the

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FCA, the Legislature explained that the goal was to enhance recoveries in

Medicaid fraud cases.

Federal courts have consistently construed the 2010 amendment to the

FCA to apply prospectively. See, e.g., United States ex rel. Zizic v.

Q2Administrators, LLC, 728 F.3d 228, 232 n.3 (3d Cir. 2013); United States ex

rel. Poteet v. Bahler Med., Inc., 619 F.3d 104, 107 n.2 (1st Cir. 2010); United

States ex rel. May v. Purdue Pharma L.P., 737 F.3d 908, 914-18 (4th Cir. 2013);

Bellevue v. Universal Health Servs. of Hartgrove, Inc., 867 F.3d 712, 717-18

(7th Cir. 2017); Prather v. AT&T, Inc., 847 F.3d 1097, 1103 (9th Cir. 2017).

Accordingly, we presume that the New Jersey Legislature was aware of the

federal law concerning the prospective application of the new definition of

original source and meant to likewise apply the NJFC Act amendments

prospectively.

C. Whether the Public Disclosure Provision Bars Plaintiffs' New

Jersey Actions.

The public disclosure bar in the NJFC Act prevents a private person from

bringing a qui tam action that is based upon publicly disclosed allegations or

transactions "unless the person bringing the action is an original source of the

information." N.J.S.A. 2A:32C-9(c). Accordingly, the public disclosure

provision bars an action by a private person when (1) there has been a prior

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public disclosure of the alleged fraud; and (2) the person's lawsuit is based upon

"substantially the same allegations or transactions[;]" unless (3) the person is an

original source of the information. Ibid.

There is no dispute that there was a prior disclosure of the fraud. Plaintiffs

first sued Bayer and Lilly in federal court in Texas, and the complaints in those

actions were unsealed in 2017. The NJFC Act identifies allegations made in a

"criminal, civil, or administrative hearing in which the State or an agent of the

State is a party" as prior disclosures. Ibid. Because the term "hearing" is used

identically in the NJFC Act and FCA, we adopt the well-established federal rule

that the public disclosure bar applies even when the prior complaint was filed

by the same relator. See, e.g., Poteet, 619 F.3d at 113 (holding that the public

disclosure bar applies when relator's own lawsuit was the source of the prior

public disclosure and noting that after a relator has "blow[n] the whistle on fraud

. . . . there seems to be little need to encourage them to give the whistle a second

toot"); United States ex rel. Schweizer v. Canon, Inc., 9 F.4th 269, 275-76 (5th

Cir. 2021) (relator's prior complaint barred the subsequent action).

There is also no dispute that plaintiffs' allegations in the New Jersey

actions are substantially the same allegations they made in the Federal Actions.

The complaints in the New Jersey actions identified the same three schemes

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identified in the Federal Actions and were brought against the same defendants.

Although the New Jersey actions were more limited in scope in that they did not

involve claims under the FCA, they included the same claims concerning New

Jersey because New Jersey was originally named as a plaintiff in the Federal

Actions.

Therefore, a critical issue in these appeals is whether plaintiffs are the

original source of the allegations. In 2019, original source was defined to mean

"an individual who has direct and independent knowledge of the information on

which the allegations are based and has voluntarily provided the information to

the State before filing an action under this act based on the information."

N.J.S.A. 2A:32C-9(c) (2010).

Bayer and Lilly argue that plaintiffs are not "individuals" that can qualify

as an original source under the NJFC Act because they are limited liability

companies, not natural persons. No New Jersey caselaw analyzes the meaning

of the word "individual" in the context of the original source exception to the

NJFC Act's public disclosure bar. In analyzing other statutes that use both

"person" and "individual," the United States Supreme Court has interpreted

"individual" to mean "a natural person, and in particular to distinguish between

a natural person and a corporation." Mohamad v. Palestinian Auth., 566 U.S.

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449, 454 (2012). Nevertheless, courts in other jurisdictions have assessed

whether a corporate entity may be an original source without deciding this issue.

See, e.g., United States ex rel. Precision Co. v. Koch Indus., Inc., 971 F.2d 548

(10th Cir. 1992). We decline to decide this issue because even if a limited

liability company may be considered an original source under the NJFC Act,

plaintiffs are not an original source because their knowledge is not "direct" and

"independent."

In construing "direct" and "independent," we start with the plain language

of the statute. See State v. Thompson, 250 N.J. 556, 572 (2022). The definition

of "direct" includes "marked by absence of an intervening agency,

instrumentality, or influence." Merriam-Webster's Collegiate Dictionary 353

(11th ed. 2020). The definition of "independent" includes "not requiring or

relying on something else." Id. at 633. Taking those definitions together, "direct

and independent" requires that the relator's knowledge be gained from its own

efforts and that the knowledge does not depend on public information.

New Jersey courts have not previously defined the terms direct and

independent, but federal courts have. The definitions used by federal courts are

consistent with the plain language of the NJFC Act. Federal courts have held

that for knowledge to be "direct," it must be "'obtained without any intervening

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agency, instrumentality, or influence.'" United States ex rel. Schumann v.

Astrazeneca Pharms., L.P., 769 F.3d 837, 845 (3d Cir. 2014) (quoting United

States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 520 (3d Cir.

2007)) (internal quotation marks omitted). Direct knowledge must be "based on

'first-hand' information," Zizic, 728 F.3d at 239 (quoting United States ex rel.

Paranich v. Sorgnard, 396 F.3d 329, 336 (3d Cir. 2005)), and cannot be

"derivative of the information of others," Paranich, 396 F.3d at 336 (quoting

United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156,

1162 (10th Cir. 1999)).

In their complaints, plaintiffs acknowledge that they learned of the alleged

fraudulent schemes by having their agents conduct a series of interviews.

Indeed, those interviews were conducted before plaintiffs, which are limited

liability companies, were even formed. Therefore, plaintiffs did not have direct

and independent knowledge of the alleged fraud. Instead, they were twice

removed from direct knowledge. Their parent corporation used agents to

conduct interviews, then analyzed publicly available data. After that

information was collected indirectly, plaintiffs were then incorporated to bring

the actions. In short, plaintiffs' knowledge was not direct and independent

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because it came from interviews conducted by agents who, in turn, were not

directly involved in the alleged transactions.

Plaintiffs argue that the definition of direct and independent should not be

narrowly construed because the goal of the NJFC Act is to root out fraud. The

New Jersey Legislature, like Congress, however, has struck a balance. After

there is a public disclosure of the alleged fraud, a private party's suit is not

always necessary because the Attorney General can investigate and bring a

direct action on behalf of the State. See N.J.S.A 2A:32C-5(a), (d). Therefore,

applying the plain-language definition of direct and independent maintains the

balance of rooting out fraud but also preventing parasitic private lawsuits.

Brennan, 454 N.J. Super. at 620.

Having conducted a de novo review, we affirm the orders dismissing

plaintiffs' complaints in New Jersey against Bayer and Lilly based on the public

disclosure bar. Given that ruling, we need not reach the issues of the first -to-

file rule and the sufficiency of the pleadings.

Affirmed.

A-2731-20

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