Understanding the False Claims Act Public Disclosure Bar: What “Substantially the Same” Means for Whistleblower Cases

The False Claims Act (“FCA”) empowers whistleblowers—known as relators—to bring lawsuits on behalf of the Government when they discover fraud involving federal funds. But not every whistleblower case can move forward. One of the most litigated obstacles is the FCA’s public disclosure bar, which requires dismissal if the allegations in a qui tam complaint are “substantially the same” as information that has already entered the public domain.

This post explains what “substantially the same” means, how courts evaluate public disclosure arguments, and why this matters for potential whistleblowers.

What Is the Public Disclosure Bar?

Under the FCA, a court must dismiss a qui tam lawsuit if the allegations or transactions it describes were previously disclosed through certain public channels. These include:

• Federal criminal, civil, or administrative hearings in which the Government or its agent is a party;
• Federal reports, hearings, audits, or investigations; or
• News media publications.

In other words, the public disclosure bar applies if the allegations in the qui tam lawsuit are “substantially the same” as allegations or transactions in a qualifying public disclosure.

If the public disclosure bar applies, the case can continue only if: (1) The Government opposes dismissal; or (2) The relator qualifies as an original source—meaning she has independent knowledge that materially adds to what is already publicly known.

The central question is often: How similar must the earlier, publicly available information be to the fraud alleged in the complaint?

How Courts Interpret “Substantially the Same”

Courts across the country have developed tests to determine whether prior disclosures contain enough information about a fraudulent scheme to trigger the bar.

Seventh Circuit: “Critical Elements” Test. In the Seventh Circuit, “the allegations in a complaint are publicly disclosed when the critical elements exposing the transaction as fraudulent are placed in the public domain.”

Eleventh Circuit: The “X + Y = Z” Framework. The Eleventh Circuit follows a similar logic using an “X + Y = Z” test where courts ask whether the public domain contains “X” (the false claim submitted) and “Y” (the true facts showing the claim is false), equaling “Z” (the disclosure or fraud). If “only one element of the fraudulent transaction is in the public domain (e.g., X), the qui tam plaintiff may mount a case by coming forward with either the additional elements necessary to state a case of fraud (e.g., Y) or allegations of fraud itself (e.g., Z).”

District Courts Nationwide. District courts across the country have similarly concluded that a partial disclosure of a fraud scheme—the “X” or the “Y” but not both—is not enough to trigger the public disclosure bar.

A Recent Example: United States ex rel. 3729, LLC v. Evernorth Health, Inc.

Earlier this year, the Ninth Circuit considered whether a relator’s allegations were “substantially the same” as a prior news article and regulatory comments about a pharmacy benefits manager’s refill practices.

The relator alleged that the company systematically over-dispensed medications to TRICARE beneficiaries through software that triggered early refills—resulting in excess shipments and patients having an unnecessary surplus of medications.

The defendants pointed to two alleged public disclosures: (1) An Army Times article summarizing a Department of Defense Inspector General report that described waste from over-shipping medications; and< (2) Comments in a Federal Register notice criticizing waste caused by auto-ship policies.

In analyzing these arguments, the court applied Ninth Circuit precedent requiring the previously disclosed information to contain either a direct claim of fraud or facts from which fraud can be inferred that is substantially similar to the fraud alleged in the complaint. The court explained that for fraud to be inferred, the “essential elements” of fraud—a “misrepresented state of facts and a true set of facts”—must both be in the public domain.

In applying this standard to the two public disclosures, the court considered the precise language and determined that those publications did not disclose facts giving rise to a reasonable inference of a substantially similar theory of fraud as alleged in the complaint, as the information publicly disclosed either involved a different alleged fraud, overly general and vague statements of waste, or statements that, while more specific, did not establish the systematic nature of the alleged scheme.

As a result, the court reversed the dismissal and allowed the complaint to proceed.

Why This Matters for Whistleblowers

In the digital age, a vast amount of corporate information—articles, regulatory filings, investor presentations, public comments, and more—is readily available. Defendants often try to use these materials to argue that a whistleblower’s allegations are not new.

But publicly available information must be specific enough and complete enough to allow someone to infer the fraud. General statements, partial disclosures, or information about different practices usually do not trigger the bar.

This makes decisions like Evernorth Health critical: they confirm that having some information online does not necessarily prevent a whistleblower with non-public insights from pursuing a case.

Considering a Whistleblower Action? We Can Help.

If you believe you have knowledge of fraud against the Government and are unsure whether that information has already been publicly disclosed, the attorneys at RKJ can evaluate the situation and guide you through your options.

Contact us at 561-659-7878 for a confidential consultation.