The False Claims Act lets people sue on behalf of the U.S. government to fight fraud it didn't know about — and collect a nice reward. But does it let the FCA plaintiff — or qui tam relator — release claims against the target but sue anyway?
Today the Fourth Circuit said no. Mark Radcliffe, an employee of Purdue Pharma, contacted an Assistant United States Attorney and asked whether the government would consider an FCA case against Purdue. But he said nothing about the particulars of what such an FCA claim against Purdue might entail. The government in fact opened an investigation of Purdue, including of the matters that Radliffe later complained about in his FCA case.
Several months after the AUSA contact, Radcliffe took a severance package from Purdue. In the process, he signed a release that covered "all liability to Employee for . . . claims" that "Employee . . . ever had, may now have or hereafter can, shall or may have against" Purdue.
The court held that the release didn't require the U.S. Attorney General's okay and that by its terms it wiped out the Radcliffe's right to bring an FCA claim.
The panel also opined that public policy didn't bar the release because the government started probing Purdue's practices regarding its marketing of OxyContin, the same drug that Radliffe based his qui tam lawsuit on. The government's pre-release knowledge of the potential OxyContin fraud trumped the Radcliffe's argument that enforcing the release would frustrate the purposes of the FCA. United States ex rel. Radcliffe v. Purdue Pharma, No. 09-1202 (4th Cir. Mar. 24, 2010).