Recently, in United States ex rel. Banigan et al. v. Organon USA Inc. et al., a court in the District of Massachusetts was asked to consider whether a relator may use information obtained by the government through a government subpoena to bolster the relators’ complaint. See U.S. ex rel. Banigan, et al. v. Organon USA Inc., et al. Civil Action No. 07-12153, 2011 WL 794915 (D. Mass. Feb. 28, 2011). Relators brought a lawsuit against several pharmaceutical companies under the FCA and state false claims acts, alleging that the companies participated in a scheme to offer unlawful enticements to third parties to proscribe Remeron SolTab to patients, including patients on Medicaid. While the United States and various states declined to intervene, during the investigative stage, Texas subpoenaed documents from several of the defendants and shared those documents with relators. The defendants had produced the documents subject to a protective order which prevented the documents’ use after Texas concluded its investigation, subject to certain exceptions. After the investigation had concluded, the relators informed defendants that they intended to use information from the subpoenaed documents to bolster their allegations in a yet-to-be-filed third amended complaint.

Defendant Organon USA consented to relators’ use of its documents, but Pharmerica Long Term Care, LLC and Omnicare, Inc. objected and filed a motion with the court seeking a prohibition on the use of their documents, which relators opposed. The court concluded that because relators had not yet filed their third amended complaint and because the record did not indicate the contents of the documents or information relators intended to use in amending their complaint, the concern about improper use of the documents was entirely speculative. In reaching its holding, the court noted that other courts have held or expressly presumed that, at least in some instances, a relator may reinforce the complaint with information obtained from government documents. See U.S. ex rel. Banigan, et al. v. Organon USA Inc., et al. Civil Action No. 07-12153, 2011 WL 794915 (D. Mass. Feb. 28, 2011), citing U.S. ex rel. Rafizadeh v. Cont'l Common, Inc., 553 F.3d 869, 873 n. 6 (5th Cir.2008); U.S. ex rel. Clausen v. Lab. Corp. of Am., 290 F.3d 1301, 1314 n. 25 (11th Cir.2002); U.S. ex rel. Underwood v. Genentech, 720 F.Supp.2d 671, 680 (E.D.Pa.2010). The courts in these cases have suggested that there is no need to relax the Rule 9(b) pleading standard if the relator can incorporate into his complaint allegations based on discovery he has obtained from the government, because in many cases, the information needed to fill the gaps of an inadequately pleaded complaint will be in the government’s hands.

Moreover, as we reported last year, in United States ex. rel. King v. Solvay S.A., Civil Action H-06-2662, the Southern District of Texas held that relators could amend their FCA complaint to add factual allegations based on documents subpoenaed by the government while the case was under seal. Here, however, given the court’s decision to withhold its opinion based on the particular factual record, it remains to be seen whether the District of Massachusetts will join in these holdings permitting relators to amend their complaints using documents subpoenaed by the government in certain circumstances, and if so, to what extent.