[00:00:10] Speaker 07:
Morning, counsel.

[00:00:11] Speaker 03:
Good morning, your honors.

[00:00:12] Speaker 03:
And may it please the court, Jeremy Friedman for relator and appellant.

[00:00:17] Speaker 03:
With me at counsel's table is Michael Wilson, who's my co-counsel, as well as Shawna Ittree for amicus.

[00:00:26] Speaker 03:
The principal question to be—oh, and I'd like to reserve three minutes for my rebuttal.

[00:00:32] Speaker 03:
The principal question presented is, was the issue—was the fraud at issue in this litigation previously exposed in the May 31, 2011 New York Times article?

[00:00:45] Speaker 05:
Why just that article?

[00:00:46] Speaker 05:
There were several New York Times articles.

[00:00:48] Speaker 03:
There were seven, but there were several.

[00:00:50] Speaker 05:
I don't know if there were seven, but there were several.

[00:00:52] Speaker 05:
And I do think you seem to be focusing on one of them.

[00:00:55] Speaker 05:
So am I missing something?

[00:00:56] Speaker 05:
Why that one?

[00:00:57] Speaker 03:
That's the one where they supposedly disclosed the compensation arrangements with family members.

[00:01:05] Speaker 05:
I've read all of them.

[00:01:06] Speaker 05:
I'm sure we all have.

[00:01:07] Speaker 05:
So I'm just trying to figure out why you think it is meaningfully different.

[00:01:12] Speaker 03:
is meaningfully different because all of them deal with direct payments, whether or not there are improper direct payments going to... You think that's the only one that dealt with family payments?

[00:01:23] Speaker 03:
This case.

[00:01:24] Speaker 05:
Nepotistic hiring practices.

[00:01:25] Speaker 05:
Yes.

[00:01:25] Speaker 05:
I'm not trying to take a lot of your time.

[00:01:27] Speaker 05:
It's a simple question.

[00:01:28] Speaker 03:
Yes.

[00:01:28] Speaker 05:
That's the only one.

[00:01:29] Speaker 03:
That's the only issue, because that's what is remaining in the Sam Jones complaint.

[00:01:34] Speaker 03:
After we dismissed Count 5 voluntarily because of the settlement in the Bell case, the only claims presented currently and before the court are the family papers.

[00:01:45] Speaker 05:
I know that.

[00:01:45] Speaker 05:
I'm just trying to figure out, of the New York Times articles, do you think there's only one that talks about nepotistic hiring practices?

[00:01:51] Speaker 03:
Yes.

[00:01:52] Speaker 05:
Thank you.

[00:01:53] Speaker 05:
That's all I needed.

[00:01:54] Speaker 03:
I'm sorry, I wasn't more direct on that.

[00:01:57] Speaker 03:
To trigger the bar under Miteski and Sobersure, there has to be either an explicit statement of wrongdoing or facts from which fraud could be inferred.

[00:02:09] Speaker 03:
And everyone agrees that there is no explicit allegation of fraud in the New York Times article.

[00:02:16] Speaker 03:
So the question is, can one read the New York Times article and infer from those facts that there occurred a transaction of fraud that was substantially the same as the alleged fraud here?

[00:02:28] Speaker 03:
Or in the words of the court in Sobershire, did the New York Times article expose the material elements of the allegedly fraudulent scheme?

[00:02:38] Speaker 03:
And you would go claim by claim, defendant by defendant.

[00:02:42] Speaker 03:
I'd like to deal with the two other.

[00:02:44] Speaker 05:
Can I interrupt you, because you don't have a lot of time.

[00:02:46] Speaker 05:
And we've read lots of cases in case law.

[00:02:50] Speaker 05:
And I'm trying to get at, I think we understand what the question is.

[00:02:53] Speaker 05:
And we're trying to tease out, how similar does it have to be?

[00:02:57] Speaker 05:
how similar does it have to be because congress is trying to has directed that we strike this balance and um... in its most recent statutory uh... iteration i think it was restricting this bar trying to pull it back a bit and yet there's still uh... definitely concerned about about uh... parasitic suits so we're trying to figure out how to strike that balance i don't know

[00:03:21] Speaker 05:
So first of all, if the New York Times article or articles is enough to knock out this case, why not Bell?

[00:03:29] Speaker 05:
Why wouldn't it have knocked out Bell?

[00:03:32] Speaker 03:
That's exactly right, Your Honor.

[00:03:34] Speaker 03:
Was it raised in Bell?

[00:03:36] Speaker 05:
Pardon?

[00:03:37] Speaker 05:
It wasn't a rhetorical question.

[00:03:38] Speaker 05:
Was it raised in Bell?

[00:03:39] Speaker 05:
Bell was settled, yes?

[00:03:41] Speaker 03:
Bell was settled, and if the New York Times article

[00:03:46] Speaker 03:
And the sample litigation had acted as a bar on Bell.

[00:03:50] Speaker 03:
Bell never would have brought.

[00:03:51] Speaker 05:
Right.

[00:03:52] Speaker 05:
So I'm just to be kind of move this along.

[00:03:56] Speaker 05:
Was it raised in Bell?

[00:03:58] Speaker 03:
It was not that we know of, Your Honor, because it was settled.

[00:04:02] Speaker 05:
Yes.

[00:04:02] Speaker 05:
OK.

[00:04:03] Speaker 05:
And that's the problem, I think, with several of these.

[00:04:06] Speaker 05:
Relatedly, I'm trying to figure out why Sant wouldn't knock out this case public disclosure bar wise.

[00:04:14] Speaker 05:
And I think the answer is that Sant didn't include, I don't know if I'm pronouncing that correctly, but I don't know if it included any allegations of nepotistic hiring practices.

[00:04:24] Speaker 03:
Sant had one line in it, one sentence that was repeated twice, and there was no actual statement of a claim.

[00:04:33] Speaker 03:
There was no identification of anybody who had entered into a compensation arrangement.

[00:04:38] Speaker 03:
But perhaps most important, there wasn't a statement that there was an unlawful compensation arrangement.

[00:04:44] Speaker 05:
OK, well, it doesn't seem to take a lot of imagination after one reads the New York Times articles.

[00:04:49] Speaker 05:
So I'm just going to ask you this hypothetical.

[00:04:51] Speaker 05:
And if you can always try to get lawyers to divorce themselves from the facts of their cases, and they almost never can, or never want to.

[00:04:58] Speaker 05:
But it's not intended to be a trick question.

[00:04:59] Speaker 00:
I will try.

[00:05:00] Speaker 05:
I'm going to ask the other team the same thing, which is I'm looking for case law.

[00:05:05] Speaker 05:
And it seems it ought to be out there, where we're talking not necessarily about like in Miteski, where there's an ongoing

[00:05:13] Speaker 05:
problem that's been reported by the government accounting offices.

[00:05:18] Speaker 05:
And then the question was whether this complaint, which added significantly more detail, was different enough to withstand the bar.

[00:05:25] Speaker 05:
This seems to be a circumstance where if you look at all the articles, all the New York Times articles, the general scheme, that's my word, involving biotronic had been reported out.

[00:05:34] Speaker 05:
And in fact, it's been sued on several times.

[00:05:37] Speaker 05:
But, with one exception that I'm going to ask about in a minute, but for purposes of this question, what I don't see is case law that talks about other iterations of the same scheme, particularly separated by number of years.

[00:05:50] Speaker 05:
Is there a case law like that?

[00:05:52] Speaker 03:
There are case law that says that if you're talking about a past scheme, does that raise the bar to future schemes?

[00:06:01] Speaker 03:
Does that mean the bar lasts forever?

[00:06:05] Speaker 03:
Is that case law?

[00:06:05] Speaker 03:
The Booker case, Booker versus Pfizer, which is nine Fs up.

[00:06:10] Speaker 03:
We cite it in our brief at reply brief at page 11.

[00:06:12] Speaker 05:
Do you think that's the one that comes closest?

[00:06:15] Speaker 03:
That's one of the best.

[00:06:16] Speaker 03:
There's also the one from this court in the Ninth Circuit's Shahinian versus Kimberly Clark that's cited in the opening brief of 50.

[00:06:25] Speaker 03:
I think the concept really is settled in a law that we sue fraudsters for what they did in the past, not what they did in the future.

[00:06:34] Speaker 03:
And we hope that if we hold them accountable for what they did in the past, that they'll change their ways.

[00:06:40] Speaker 05:
But if they don't change— Well, that argument works pretty well where there's a separation.

[00:06:43] Speaker 05:
And here I think you have six years between the initial—at least between the New York Times articles and your 2017 complaint.

[00:06:53] Speaker 03:
Not only that, Your Honor, and I don't want to go back to the facts if you want me to deal only with the hypothetical, but in the New York Times article itself, there's no disclosure that there was unlawful compensation arrangements.

[00:07:06] Speaker 05:
OK, but that's the part where I said I don't think it takes a whole lot of imagination, or at least for purposes of this hypothetical.

[00:07:12] Speaker 05:
And my problem with, again, so now you're down to three minutes, so I'm trying to talk quickly.

[00:07:17] Speaker 05:
But my problem is that the way you're defining the bar, I'm not sure there ever is a bar.

[00:07:23] Speaker 05:
And we're trying to strike a balance here.

[00:07:25] Speaker 05:
So where would you draw the line here?

[00:07:26] Speaker 03:
There most definitely is a bar.

[00:07:28] Speaker 05:
Where would you draw the line?

[00:07:30] Speaker 03:
Where would we draw the line?

[00:07:31] Speaker 03:
There would have to be a disclosure of the identity of the parties, and there would have to be a disclosure of a statement to the government in connection with the claim for payment.

[00:07:44] Speaker 03:
That's not in the article.

[00:07:46] Speaker 03:
And there would have to be a statement of the facts in the article showing an unlawful compensation.

[00:07:52] Speaker 05:
That's not good enough, because that's the same general allegation, that Biotronic is using this scheme

[00:07:57] Speaker 05:
to funnel, these are my words and they're not very good ones, I don't mean to impugn, these are allegations only, that Biotronic was funneling kickbacks to doctors for using their medical device.

[00:08:11] Speaker 03:
And the Stark claim.

[00:08:12] Speaker 05:
And Biotronic is named throughout these.

[00:08:14] Speaker 05:
But it's not, that's why I say different iteration, different hospitals, different surgeons, is that enough?

[00:08:20] Speaker 05:
And if so, what's the case law that most closely suggests that it is enough?

[00:08:24] Speaker 03:
There has to be a naming of the other two defendants, so they're out for sure.

[00:08:30] Speaker 05:
I know you keep asserting that.

[00:08:31] Speaker 05:
Can you just tell me what is the case law that goes there for you, sir?

[00:08:35] Speaker 05:
What supports that?

[00:08:35] Speaker 03:
There's Alcan, this court case in 1999.

[00:08:39] Speaker 03:
There's Cooper, perhaps that's the best.

[00:08:42] Speaker 03:
Cooper and the 11th Circuit in 1994.

[00:08:45] Speaker 03:
And NRA Natural Gas.

[00:08:47] Speaker 03:
Tenth Circuit in 2009, all of those cases are cited on our briefs.

[00:08:52] Speaker 03:
That the identity of the party is an essential element.

[00:08:56] Speaker 03:
And if you don't name the party, then you have to say specific facts where that party is identifiable.

[00:09:02] Speaker 05:
Opposing counsel is going to get up and say they've been named.

[00:09:04] Speaker 05:
Biotronic has been named.

[00:09:05] Speaker 03:
Biotronic has been named.

[00:09:07] Speaker 03:
So if the other allegations are sufficient for Biotronic

[00:09:12] Speaker 03:
Sam Jones's claim would be barred unless he's an original source.

[00:09:18] Speaker 03:
But the claims against the other two defendants would not be.

[00:09:22] Speaker 03:
And the reason why the claims against Biotronic are not named is because there's no disclosure of an unlawful compensation arrangement.

[00:09:29] Speaker 03:
Nepotistic hiring is not what our case is about.

[00:09:33] Speaker 03:
It's about nepotistic hiring when the compensation varies with the number of orders.

[00:09:40] Speaker 05:
So that's my last question for you, if I could interrupt you.

[00:09:42] Speaker 05:
Please.

[00:09:42] Speaker 05:
Forgive me for interrupting.

[00:09:43] Speaker 05:
But I don't see any other complaint, and this is for the other lawyers, too.

[00:09:48] Speaker 05:
I don't see any other complaint or newspaper article that talked about a three-way hiring scheme.

[00:09:53] Speaker 05:
There are hospitals allegedly doing this or participating and knowingly submitting false claims.

[00:09:59] Speaker 05:
in order to, I'll say, keep happy a physician who's a very large billing center.

[00:10:07] Speaker 03:
There's not only a no disclosure.

[00:10:09] Speaker 03:
That was a question.

[00:10:10] Speaker 03:
That was a question.

[00:10:12] Speaker 05:
Was that disclosed anywhere?

[00:10:14] Speaker 03:
No.

[00:10:15] Speaker 05:
The three-way?

[00:10:16] Speaker 03:
The three-way is not disclosed anywhere in the article.

[00:10:19] Speaker 03:
That was my question.

[00:10:20] Speaker 03:
And if I'd like to give a very important point, I'd like to read from page 319

[00:10:25] Speaker 03:
of the excerpts of record in volume three, where it says specifically in the New York Times article, Biotronic and its consultants have not been accused of any wrongdoing.

[00:10:38] Speaker 03:
And Mr. Myers said the company had abided by all federal regulations.

[00:10:45] Speaker 03:
So what makes it unlawful is not whether they hire a brother or a son.

[00:10:52] Speaker 03:
That's not the point.

[00:10:54] Speaker 03:
The point is that they hire one, and then the compensation arrangement is unlawful because it doesn't fit within the stark exceptions or the AKS safe harbors.

[00:11:06] Speaker 07:
All right, Council, you've exceeded your time.

[00:11:08] Speaker 07:
We'll give you one minute for rebuttal.

[00:11:10] Speaker 07:
OK, thank you.

[00:11:16] Speaker 02:
Good morning, your honor's Sean entry from zero ice my firm along with the anti-fraud coalition filed an amicus in this case.

[00:11:22] Speaker 02:
I've been generously granted five minutes.

[00:11:24] Speaker 02:
I want to make one point.

[00:11:26] Speaker 02:
There is no requirement in the original source exception to the public disclosure bar that a relator have knowledge prior to the public.

[00:11:35] Speaker 08:
How do we get around Meyer?

[00:11:38] Speaker 08:
And so we said in Meyer that that is the case.

[00:11:43] Speaker 08:
Now, were we just talking about the facts that were before the court in Meyer?

[00:11:46] Speaker 08:
How do we distinguish Meyer?

[00:11:51] Speaker 02:
Decision of Meyer.

[00:11:52] Speaker 08:
A relator has independent knowledge when he knows about the allegations before the information is publicly disclosed.

[00:12:00] Speaker 08:
Is that a what?

[00:12:04] Speaker 08:
Is that a holding that we're bound by, I guess, is the question.

[00:12:07] Speaker 02:
So in the text of the statute, the statute was amended in 2010 to make two definitions of the original source.

[00:12:14] Speaker 02:
In the 2009 Meyer is the pre-2010 amendment where there was not two definitions of the original source.

[00:12:21] Speaker 02:
In that definition, it talks about direct and independent knowledge based on the information that was publicly disclosed.

[00:12:28] Speaker 02:
In Meyer, what the court ended up saying that they were there to claim their original source.

[00:12:33] Speaker 02:
but that wasn't direct and independent knowledge, because the independent knowledge came from a third party.

[00:12:38] Speaker 05:
I think your point is well taken, that it's not a temporal requirement.

[00:12:45] Speaker 05:
It's parallel, right?

[00:12:47] Speaker 05:
And I think your point is well taken.

[00:12:48] Speaker 05:
Somebody's made it in the briefing somewhere.

[00:12:50] Speaker 05:
There's a lot of briefing.

[00:12:52] Speaker 05:
That if there had been an independently discovered conduct,

[00:12:56] Speaker 05:
that just because there was a filing or disclosure on a parallel track, that wouldn't knock out a claim or wouldn't disqualify an original source.

[00:13:08] Speaker 05:
Yes, Your Honor.

[00:13:10] Speaker 05:
Right.

[00:13:11] Speaker 05:
But in this case, there's an allegation in the complaint that in response to the Bell settlement, that's what the opposing party has argued, that it was in response to the Bell settlement that really started Sam Jones on this journey.

[00:13:26] Speaker 05:
What about that?

[00:13:28] Speaker 05:
Yes, Your Honor.

[00:13:29] Speaker 02:
Sam Jones, there's two relators.

[00:13:31] Speaker 02:
They were both former employees of the company.

[00:13:34] Speaker 02:
They did an independent investigation.

[00:13:36] Speaker 05:
But they did an independent investigation, and they have alleged that they did that because of Bell, that that brought this to their attention.

[00:13:46] Speaker 02:
Independent, Your Honor, is from a different source other than the public disclosure.

[00:13:50] Speaker 02:
And that knowledge came independently from the relators from their investigation.

[00:13:55] Speaker 05:
They included about... It reads like the investigation verified their suspicion and that their suspicion was based upon Bell.

[00:14:04] Speaker 02:
I don't read it that way, but even if it does, their investigation is an independent source.

[00:14:10] Speaker 02:
Their information did not come from the public disclosure.

[00:14:12] Speaker 02:
It did not come from the Sot case.

[00:14:14] Speaker 02:
It did not come from the New York Times article.

[00:14:17] Speaker 02:
It came from their own experiences.

[00:14:19] Speaker 02:
They went through their complaint, substantially adds to the public disclosure.

[00:14:23] Speaker 02:
They added about 600, almost 700 invoices from Dr. Goodman, one of the defendants in the case, showing that he was paid money for referrals, paid money for surgically implanting medtronics devices.

[00:14:37] Speaker 02:
It talks about the compensation arrangements in detail and that the sales reps' compensation depended on the value and volume of referrals.

[00:14:46] Speaker 08:
It talks about 11 other relationships, 11 other- I guess that's helpful in terms of pinning down the complaint.

[00:14:52] Speaker 08:
I guess I have a, just to back up here, I have a question that doesn't seem to be sorted out well in the briefs.

[00:14:59] Speaker 08:
3734A says the court shall dismiss an action or a claim.

[00:15:05] Speaker 08:
We're dealing with a motion to dismiss on a complaint.

[00:15:07] Speaker 08:
I take it the New York Times article is somehow incorporated, but how do you view the standard that it takes to establish?

[00:15:15] Speaker 08:
Is this an affirmative defense that the complaint has to plead itself into?

[00:15:19] Speaker 08:
What are we supposed to do?

[00:15:22] Speaker 08:
What's the universe of things that we are allowed to consider under the public disclosure bar outside of the complaint?

[00:15:29] Speaker 08:
outside of the complaint I don't think I'm sorry I don't completely understand your honor's question can you please well this is a motion to dismiss and the public disclosure bar reads as an affirmative defense but it also says the court shall dismiss in action and so I'm just trying to figure out what what record do we have before us to work through here usually we just have to look at the face of the complaint there's judicial notice of the New York Times article but

[00:15:56] Speaker 08:
What else is there?

[00:15:58] Speaker 08:
In other words, typically in an affirmative offense, we'd have to find that the complaint itself establishes the affirmative defense.

[00:16:06] Speaker 08:
I'm just wondering whether you have any experiences, like what are we supposed to do with respect to the statute vis-a-vis the 12b issue?

[00:16:12] Speaker 02:
So in the district court's opinion, I think he took judicial notice of the one May 31st argument saying this was the most relevant.

[00:16:19] Speaker 02:
And I think in the footnote one, he said, we don't need to take judicial notice of the other articles.

[00:16:23] Speaker 08:
So we're stuck with that or whatever else we've noticed.

[00:16:26] Speaker 02:
We're stuck with the New York Times article.

[00:16:28] Speaker 02:
And then you look at, are the allegations in the complaint substantially similar to whatever the transactions disclosed in the New York Times article?

[00:16:37] Speaker 02:
OK.

[00:16:37] Speaker 02:
And I would say that they are not substantially similar.

[00:16:40] Speaker 02:
They're very, very different.

[00:16:42] Speaker 02:
There are specific facts like Metesky that are alleged in the complaint that was not set forth within the New York Times article.

[00:16:50] Speaker 08:
Thank you.

[00:16:51] Speaker 02:
All right, Council, thank you.

[00:16:52] Speaker 07:
You've exceeded your time.

[00:17:12] Speaker 04:
Good morning.

[00:17:12] Speaker 07:
Good morning.

[00:17:14] Speaker 04:
Your honors, may it please the court.

[00:17:16] Speaker 04:
I'm Megan Mocho.

[00:17:16] Speaker 04:
I'm representing Biotronic in this case.

[00:17:18] Speaker 07:
Council, could you put the mic a little closer?

[00:17:21] Speaker 07:
I'm having some difficulty hearing you.

[00:17:22] Speaker 04:
Apologies, Your Honor.

[00:17:23] Speaker 04:
I have a little voice.

[00:17:24] Speaker 04:
That's all right.

[00:17:25] Speaker 04:
I'll speak up.

[00:17:26] Speaker 04:
I agree with Your Honors that there have been two disclosures that triggered the public disclosure bar in this case.

[00:17:31] Speaker 04:
The series of New York Times articles, there were five in total, the last of which does make explicit reference to the nepsis occurring at issue here.

[00:17:41] Speaker 05:
But going back to Judge Johnstone's question, that's something I think we're grappling with.

[00:17:45] Speaker 05:
Did the district court take judicial notice of more than one of them?

[00:17:48] Speaker 04:
It did not take judicial notice of more than one of them.

[00:17:51] Speaker 04:
However, implicit in the district court's decision is the idea that he took the entire context of the article.

[00:17:57] Speaker 05:
Well, I don't think so.

[00:17:58] Speaker 05:
Could you answer, what do you think is properly before this court in response to Judge Johnstone's question?

[00:18:05] Speaker 04:
This court, they have taken judicial notice of the New York Times article, the last of the five.

[00:18:10] Speaker 04:
But even if we are to focus only on the last of that five, that article in and of itself provides sufficient

[00:18:16] Speaker 05:
Inference of fraud there is a discussion about the improper and it uses the term illegally promoted sales But somewhere somehow that's the difficulty, you know I think if I agree with you that it is an article that doesn't leave a lot to imagination about an inference of fraud But it's at a hospital with different physicians at a different time years earlier It can't be the rule that it wants something like that a fraudulent scheme is disclosed that years later

[00:18:46] Speaker 05:
separated temporally and geographically, that there would be no incentive for a whistleblower to come forward and report that fraud?

[00:18:56] Speaker 04:
Your Honor, and I think that the case that is cited by the Relators talks at that point, the Kimberly Clark case, but in that case there was a different product, a different process, and a different issue with the products as opposed to here.

[00:19:13] Speaker 04:
We're talking about the exact same products

[00:19:15] Speaker 04:
And we are talking about the same time period.

[00:19:18] Speaker 08:
So if this, just to try to figure out how to, we should draw the line here.

[00:19:21] Speaker 08:
If the New York Times article said that the, to borrow Judge Christian's term, the scheme, was happening in Florida and not in California, Bard?

[00:19:37] Speaker 04:
I would argue no.

[00:19:38] Speaker 04:
Well, what good does California do?

[00:19:40] Speaker 04:
This is a pretty big state.

[00:19:41] Speaker 04:
I apologize.

[00:19:42] Speaker 04:
So, Your Honor, if we look at the Alcomb case, they talk about being able to define a narrow subset of defendants.

[00:19:48] Speaker 04:
Here, there is a narrow subset of defendants.

[00:19:50] Speaker 04:
Nepotistic hiring, you have individuals who work for Biotronic and doctors who implant

[00:19:56] Speaker 08:
Well, that's the what and I guess you know this this XYZ is really focused just on the what it doesn't get to the who or the the where And so when you're saying that there is this scheme is happening with biotronic in California that could be a universe of

[00:20:16] Speaker 08:
I don't know, hundreds of hospitals, thousands of surgeons.

[00:20:21] Speaker 08:
How on earth can the False Claims Act do its work with that broad a universe barred by public disclosure?

[00:20:28] Speaker 04:
So the Department of Justice is charged with investigating every single False Claims Act that gets put in.

[00:20:33] Speaker 05:
The Department of Justice is woefully underfunded and under resourced, and Congress knows that.

[00:20:39] Speaker 05:
And this is a statute that works by providing this incentive.

[00:20:44] Speaker 05:
So it can't be the case that once a scheme, that's my word, is disclosed that then it's fair game.

[00:20:53] Speaker 04:
If it is a different and new scheme, Your Honor, I would agree with you.

[00:20:57] Speaker 04:
But this is the exact same scheme.

[00:20:58] Speaker 04:
But wait a minute.

[00:20:59] Speaker 05:
If you define this scheme as biotronic pain kickbacks to doctors to implant to use their device, yes.

[00:21:06] Speaker 05:
But that's why I'm trying to get both of you to focus.

[00:21:08] Speaker 05:
And so far, I'm pretty much striking out on the notion that isn't there case law then that suggests, or should there be, that suggests that if that same scheme is repeated in different places around the country, and this one's separated temporally as well as geographically,

[00:21:23] Speaker 05:
Isn't that sufficiently dissimilar?

[00:21:26] Speaker 04:
But it's not separated, Your Honor, because if you look at the relator's complaint, the original complaint, it is nearly verbatim, as all of the other disclosures, and whether they trigger the bar or not.

[00:21:36] Speaker 05:
It is six.

[00:21:37] Speaker 05:
One was Nevada.

[00:21:38] Speaker 05:
One is California.

[00:21:39] Speaker 05:
And there is six years apart.

[00:21:40] Speaker 05:
So here's what I'm struggling with.

[00:21:42] Speaker 05:
If we were to do what you want us to do, which is to affirm on this record, then it seems to be that there could be the very same scheme, biotronic, pain kickbacks, two physicians to implant this same device?

[00:21:54] Speaker 05:
and that that could be repeated over and over.

[00:21:57] Speaker 05:
So Whistleblower wouldn't be able to say 10 years later, 15 years later, hey, they're doing it again.

[00:22:01] Speaker 05:
I think that's the way you would have us read this rule.

[00:22:04] Speaker 04:
I would not have you read the rule that way, Your Honor.

[00:22:06] Speaker 04:
They have alleged from 2008 forward, they have alleged that this is the exact same scheme as previously disclosed.

[00:22:12] Speaker 04:
If you look at their original complaint and their current complaint, the second minute complaint, it's 2008 forward.

[00:22:19] Speaker 04:
So it's not as if a practice started and stopped

[00:22:22] Speaker 08:
You're asking us to affirm the dismissal of years and years of conduct since the last Settlement or complaint or disclosure that has been brought in the public disclosure consistent with the public disclosure bar Recognizing the underfunding the Department of Justice.

[00:22:37] Speaker 04:
We don't need these duplicative opportunistic suit.

[00:22:40] Speaker 08:
Well, it's what's duplicative I guess the the problem is I guess I come back to the game of clue and we have a wrench a scheme some

[00:22:52] Speaker 08:
But it's Colonel Mustard in one, and it's in the lounge or the kitchen in the other.

[00:23:00] Speaker 08:
How is that enough to establish the scheme?

[00:23:03] Speaker 08:
And I guess to pick up on a question that Judge Christen had asked your friend, do we have, most of these cases involve the fraudster and the victim.

[00:23:13] Speaker 08:
It's bilateral.

[00:23:14] Speaker 08:
You've just got those two.

[00:23:15] Speaker 08:
It's the government, and then most of these cases are someone misleading the government.

[00:23:21] Speaker 08:
But we've got two intermediaries here who are the co-defendants, and this will be a question for them too.

[00:23:28] Speaker 08:
And I wasn't able to find any cases that suggested the public disclosure bar should apply to those when you have those intermediaries as well.

[00:23:35] Speaker 08:
It's different parties to the fraud.

[00:23:37] Speaker 04:
So I'll take your questions twofold, Your Honor.

[00:23:40] Speaker 04:
So if we look to the Amphistar and the Alkin case and the Solis case, the False Claims Act or even claims to the government do not need to be alleged.

[00:23:48] Speaker 04:
Whether you're alleging there's a stark violation or a kickback violation, at its core, the allegation is that there was an improper inducement provided to the doctors one way or another to secure these implants.

[00:24:00] Speaker 04:
So we submit that it's the exact same scheme.

[00:24:03] Speaker 04:
And if you look at the A1 case, the A1

[00:24:06] Speaker 05:
ambulance case that is cited the court there said that just because that you recognize a new novel legal theory does not mean that we that you're not quite a novel need I think your point well taken about that it's not just a a new theory but I do think this may be the only complaint alleged a three-way scheme I don't think improve it but I think the allegations fairly read the second certainly the second amendment complaint alleges that the hospital was also in on it and knowingly submitting false claims in order basically to

[00:24:36] Speaker 05:
make sure that they retain physicians who are doing a really big book of business.

[00:24:44] Speaker 04:
Sure, can I answer your question quickly and then Judge Johnstone's quickly?

[00:24:47] Speaker 04:
I noticed I'm a little late.

[00:24:47] Speaker 04:
We'll have time.

[00:24:48] Speaker 04:
Thank you so much.

[00:24:49] Speaker 04:
These are the same claims.

[00:24:51] Speaker 05:
These are the same.

[00:24:52] Speaker 05:
So I just asked a question.

[00:24:53] Speaker 05:
Mine was, is there another allegation of a three-way scheme?

[00:24:56] Speaker 04:
There's not, but my point is that there is, these are the exact same claims.

[00:25:00] Speaker 04:
There's not one claim.

[00:25:01] Speaker 04:
But there's not another allegation of a three-way claim and they're exactly the same?

[00:25:05] Speaker 04:
Invoice as it's used Oh, I see.

[00:25:09] Speaker 04:
You mean claims submitted to the government.

[00:25:10] Speaker 04:
Correct.

[00:25:11] Speaker 08:
But the statute is looking, it's not substantially the same claims is what the statute has, it's substantially the same transactions.

[00:25:17] Speaker 08:
And when there are different parties, why isn't that a different transaction?

[00:25:20] Speaker 04:
So the Supreme Court has recognized in the Schindler case that the transactions is a very broad term and it's intended to encompass a number of business dealings between the parties.

[00:25:29] Speaker 04:
and the broad scope of the public disclosure bar is intended to protect the government from these unnecessary suits.

[00:25:36] Speaker 04:
Your question earlier, Your Honor, about... You'll have to forgive me, I'll come back to it.

[00:25:44] Speaker 04:
But the ability to...

[00:25:49] Speaker 04:
wrap up whatever legal theory is being put out.

[00:25:53] Speaker 04:
If you look at all of these complaints, there are multiple legal theories that are all geared at the exact same claim invoice that is being submitted to the government.

[00:26:01] Speaker 04:
And they do that in order to preserve one way or another.

[00:26:03] Speaker 08:
So even if there is a completely different, I mean, I guess, depending on what you're saying with the legal theory, so if there is a different, not just if, and I'll take Biotron, you'll take your client out of it, if the alleged fraudster

[00:26:16] Speaker 08:
is not just, even if they're working with the same people, if they're different, they can just change, vary the claims that they're making a little bit, change the device, for example.

[00:26:29] Speaker 08:
I guess I'm trying to figure out what could possibly not be barred by an article of this scope under your theory.

[00:26:39] Speaker 04:
I go back to the idea.

[00:26:41] Speaker 04:
So in Miteski, we hear about the concern that if we read it too broadly, if there's a generalized allegation against an industry, that we won't be able to really drill down on who the alleged wrongdoers are.

[00:26:52] Speaker 04:
But here, biotronic is the primary focal point of a spoke.

[00:26:56] Speaker 04:
And you have very defined individuals, implanting physicians and the hospital.

[00:27:00] Speaker 08:
Not in the disclosure.

[00:27:01] Speaker 08:
That's the problem.

[00:27:02] Speaker 08:
We don't have defined individuals in the disclosure.

[00:27:05] Speaker 04:
But it is pursuant to ALKIN.

[00:27:06] Speaker 04:
It is a narrow class of individuals.

[00:27:08] Speaker 05:
so the spoke and wheel uh... examples exactly what i'm trying to get at.

[00:27:12] Speaker 05:
Is there case law that goes to that where there's one actor in the middle of this wheel and there's a but there are different iterations of the scheme different physicians different hospitals what case law goes to that to say that the public disclosure bar sweeps in each of those iterations that would be the alkin case.

[00:27:34] Speaker 04:
So in the alkin case you had

[00:27:36] Speaker 04:
two lines in a complaint that alleged that local contractors were withholding union dues from the paychecks of union members.

[00:27:47] Speaker 04:
And those local contractors were performing on federal contracts.

[00:27:51] Speaker 04:
And only one of the several defendants in that case was named as a defendant in the False Claims Act case, or excuse me, in the prior case.

[00:27:59] Speaker 04:
and the others had not been named.

[00:28:01] Speaker 04:
And the court still said that the public disclosure applied in that instance, because again, it is an identifiable group of individuals consistent with the electroscheme.

[00:28:12] Speaker 08:
Can you, I'm sorry, I'm searching for, just give us a quick site to that case.

[00:28:18] Speaker 04:
Absolutely, Your Honor.

[00:28:20] Speaker 08:
I see, it's the 99 case.

[00:28:24] Speaker 04:
Yes, 197 F3D 1014.

[00:28:35] Speaker 04:
I see I'm woefully over time, but I did want to make a very quick point about the temporal analysis if you'll indulge me.

[00:28:41] Speaker 04:
Please.

[00:28:42] Speaker 04:
I did want to point out that it is not just the Meyer case, Your Honor, that cites to the temporal analysis requirement.

[00:28:50] Speaker 04:
Meyer and Elkin were probably the most direct, but you can also look at the Wang case out of this circuit, the Amphistar case out of this circuit, even the Rockwell case out of the Supreme Court.

[00:29:01] Speaker 04:
If you look at that case, the question as to whether or not the relator had sufficient knowledge in 1982 relative to the 1988 disclosure.

[00:29:10] Speaker 04:
that temporal assessment is inherent in the analysis.

[00:29:14] Speaker 06:
All right.

[00:29:14] Speaker 06:
Thank you, Kelsey.

[00:29:15] Speaker 06:
Any other questions?

[00:29:16] Speaker 06:
All right.

[00:29:16] Speaker 06:
Thank you, counsel.

[00:29:34] Speaker 00:
Good morning.

[00:29:34] Speaker 00:
Good morning, Your Honor.

[00:29:35] Speaker 00:
It's Jerry Friedberg for Dr. Goodman.

[00:29:38] Speaker 00:
I'd like to go straight to the issue that was raised about Dr. Goodman not being identified in the article.

[00:29:45] Speaker 00:
And I think there are three reasons why the public disclosure bar still applies to Dr. Goodman.

[00:29:53] Speaker 00:
One based on the statutory language, one based on the case law, and one based on the practical objectives of the statute.

[00:30:02] Speaker 00:
The statutory language at issue is transactions or allegations.

[00:30:07] Speaker 00:
If the transactions or allegations are substantially the same, then the public disclosure bar applies.

[00:30:16] Speaker 08:
So that would then mean if it was someone other than Biotronic engaged in this scheme that the public disclosure law would apply, right?

[00:30:24] Speaker 08:
If it doesn't matter to parties?

[00:30:26] Speaker 00:
Well, I think the question then would be, is it the same transaction?

[00:30:34] Speaker 00:
In this case, the district court focused on the fact that Biotronic was the main actor in the scheme as part of its determination that it's the same transaction.

[00:30:46] Speaker 00:
And I think that also gets to some of the other elements that I mentioned, such as the purpose of the statute.

[00:30:54] Speaker 00:
Once you have Biotronic, it's a simple matter to send a civil investigative demand asking Biotronic who does it employ as a sales representative that has a family member who's an implanting physician.

[00:31:11] Speaker 00:
and to provide the records related to that physician.

[00:31:16] Speaker 08:
I appreciate the practicality of the response.

[00:31:18] Speaker 08:
Where would we find that grounded in our cases in terms of the actual functioning?

[00:31:23] Speaker 08:
And I think you've heard concerns from us that we want to fulfill the purposes here.

[00:31:27] Speaker 08:
Where would we land that concern that if it's sufficient to support a government investigation, then the public disclosure bars?

[00:31:36] Speaker 00:
So there are cases which discuss that the disclosure should be sufficient to put the government on the trail to investigate the fraud.

[00:31:45] Speaker 00:
Not that it needs to disclose the fraud in its entirety.

[00:31:48] Speaker 05:
Was there any recent pre-amendment case law that says that?

[00:31:52] Speaker 00:
I haven't found any.

[00:31:52] Speaker 00:
I believe that that's also in post-amendment case law.

[00:31:56] Speaker 00:
I can try to find it.

[00:32:07] Speaker 05:
Let me ask you this.

[00:32:08] Speaker 05:
What is the time frame spanned by the allegations against your client?

[00:32:14] Speaker 00:
2009 is when it began.

[00:32:18] Speaker 05:
And so the allegation is 2009 forward?

[00:32:22] Speaker 00:
2009 to, I think, 2017.

[00:32:24] Speaker 00:
I'd have to double check on the last date.

[00:32:27] Speaker 05:
That's right.

[00:32:28] Speaker 05:
OK.

[00:32:28] Speaker 00:
I think the time and the geographical location are factors that a court can consider in determining whether the nature and degree of the harm is sufficiently similar to meet the substantial similarity test.

[00:32:47] Speaker 00:
And what was the determining factor to the court here is that there were very specific allegations of a nepotistic hiring arrangement

[00:32:56] Speaker 00:
with physicians who were responsible for selecting the devices.

[00:33:02] Speaker 00:
And because of that high level of overlap between the nature and kind of the fraud, the court determined that the substantial similarity test was met.

[00:33:15] Speaker 00:
I don't believe that that's error.

[00:33:17] Speaker 05:
Is there any case that involves an allegation that a hospital knowingly participated

[00:33:23] Speaker 00:
I do not recall that case.

[00:33:26] Speaker 00:
I believe the indirect compensation arrangement was included in an attempt to allege a Stark Act violation.

[00:33:36] Speaker 00:
The fundamental false claim is an allegedly false certification that the law had been complied with.

[00:33:45] Speaker 00:
when in fact there are allegations of improper financial incentives or illegal marketing practices, as the article says.

[00:33:59] Speaker 00:
Well, the government's sufficiently on notice from the article that there was fraud.

[00:34:07] Speaker 00:
And if the government chooses to pursue the fraud, the government can readily do so.

[00:34:11] Speaker 05:
That way you think we ought to draw the line that if the government's on notice, then the bar applies?

[00:34:19] Speaker 00:
Well, first, I think the bar applies only if the plaintiff is not an original source, only if the government does not oppose the dismissal, and only if the government does not intervene.

[00:34:35] Speaker 00:
So it's a relatively small class of cases.

[00:34:39] Speaker 00:
In those cases, I believe the task is if the nature and kind of fraud alleged is sufficiently similar, substantially the same as the public disclosure, then the fraud applies.

[00:34:54] Speaker 00:
And in determining whether

[00:34:56] Speaker 00:
the substantial similarity test is met, I believe the court should look, as the district court did, into whether the court can, the government can readily investigate and identify the responsible individual.

[00:35:15] Speaker 05:
So you think that's just one factor?

[00:35:18] Speaker 05:
Whether the government is aware and has enough information to follow up is one factor, is what you're telling me.

[00:35:22] Speaker 00:
Yes, I think it's actually a critical factor.

[00:35:25] Speaker 00:
I read Silberture as basically coming down on the relator side because the articles would not have alerted or the prior disclosures, which I think were patent applications.

[00:35:38] Speaker 05:
What do we do about Miteski, for example?

[00:35:40] Speaker 05:
Miteski, that's our binding precedent, and it specifically talks about where the relator has added additional detail, helpful detail.

[00:35:52] Speaker 05:
It's not hard to read this complaint as adding, or this proposed complaint as adding additional helpful detail because it identifies other hospitals and other actors.

[00:36:01] Speaker 05:
What should we make of that?

[00:36:03] Speaker 00:
So the Rotet-Motesky case says that the public disclosure did not contain an explicit allegation of wrongdoing.

[00:36:12] Speaker 00:
It described delays and incompetence, not deception.

[00:36:15] Speaker 05:
Right.

[00:36:16] Speaker 05:
It even talks about that maybe it was just describing a breach of contract as opposed to fraud or to wrongdoing.

[00:36:21] Speaker 05:
Correct.

[00:36:21] Speaker 00:
Correct.

[00:36:22] Speaker 00:
In this case, it's impossible to read the 2011 article without understanding there's a strong specter of fraud.

[00:36:31] Speaker 00:
And since the main actor in the fraud is identified and the precise relationships that that actor had with its own employees is identified, it's a very easy step for the government, if it chooses to investigate it, to determine who those salesmen were, who their family members were, and how many implants those family members were responsible for.

[00:36:58] Speaker 07:
In fact, pardon me.

[00:36:59] Speaker 07:
Are there any other questions?

[00:37:02] Speaker 07:
All right, if you could wrap up, counsel.

[00:37:04] Speaker 00:
Well, so I just want to note in final that the 2000, that the alternative approach of requiring every individual to be identified, first of all, I agree with counsel that that's contrary to the Alcon case.

[00:37:24] Speaker 00:
Three other cases that we cited on that regard were North Star, which was a government action case using the transaction and allegation case, Finley v. FPC Boron, and Fine, which I believe was a 10th Circuit case.

[00:37:41] Speaker 07:
All right.

[00:37:41] Speaker 07:
Thank you, Counselor.

[00:37:41] Speaker 00:
Thank you.

[00:37:42] Speaker 07:
Let me see on your argument.

[00:37:48] Speaker 00:
Thank you, Your Honor.

[00:37:49] Speaker 07:
Thank you.

[00:38:03] Speaker 01:
Good morning, may it please the court, Paul Rogali of Larson LLP on behalf of Cedars-Sinai.

[00:38:11] Speaker 01:
Your Honor, you've heard a lot about the public disclosure bar this morning.

[00:38:14] Speaker 01:
If you have any additional questions, I'd be happy to answer them.

[00:38:17] Speaker 01:
But in the meantime, what I'd like to do is draw some attention to the alleged unlawful three-way compensation scheme that the relator would rely on in order to

[00:38:29] Speaker 01:
get over the public disclosure bar if Your Honor were to accept their state of the law with respect to what that bar is.

[00:38:35] Speaker 05:
The next stop would probably be the government action bar or one of the other defenses that district court didn't reach yet, right?

[00:38:41] Speaker 01:
Correct.

[00:38:42] Speaker 01:
There would be the government action bar, the failure for them to be an original source, which I think we've covered very clearly in the briefing.

[00:38:49] Speaker 01:
There was no disclosure to the government by the relator.

[00:38:52] Speaker 01:
And then as we've pointed out,

[00:38:54] Speaker 01:
in the briefs by all the defendants, there were multiple independent reasons from which the district court could have properly dismissed this case.

[00:39:01] Speaker 01:
And I think one of them is the failure to sufficiently allege the unlawful three-way compensation scheme that they would bootstrap their public disclosure kind of argument on.

[00:39:13] Speaker 01:
there are not any specific 9b particular allegations that adequately explain a three-way compensation structure that is significantly different than what was alleged in the articles.

[00:39:27] Speaker 05:
I don't know that this would be helpful to me.

[00:39:29] Speaker 05:
I think the gist of it is that there were certain

[00:39:32] Speaker 05:
physicians that might have been viewed as profit centers.

[00:39:35] Speaker 05:
And I don't mean to disparage anybody by using this shorthand, but I think that type of scheme with the hospital, the allegation, only an allegation, that the hospital knew about, perhaps, that a certain physician who was doing a whole lot of billing in a very profitable area had switched abruptly to a different manufacturer of a different device, and the hospital continued on without, I think, the allegation

[00:40:00] Speaker 05:
from you would be that the hospital had no idea, right?

[00:40:05] Speaker 05:
But, of course, we're not getting to any ruling about whether they can prove any of this, but I think the allegation generously construed would be that the hospital was part of this three-way arrangement to keep the doctors happy.

[00:40:17] Speaker 01:
Your honor, my response to that would be that there's no allegations in the complaint other than motive by the hospital to suggest that that three blade compensation scheme existed.

[00:40:26] Speaker 01:
What the plaintiff has alleged, in particular with respect to the hospital, is that Dr. Goodman has rights to perform procedures at the hospital.

[00:40:36] Speaker 01:
that Dr. Goodman then has a right to select devices off an approved list of devices that are provided by the hospital.

[00:40:45] Speaker 01:
The hospital will provide post-operative care to a patient, and then the hospital will provide certain billing practices.

[00:40:53] Speaker 01:
The hospital, for example, would get paid the same amount of money, presumably.

[00:40:57] Speaker 05:
Right, and that's why the allegation to just, if you can focus on the allegation, which is that it does allege that it was also, in the case of Dr. Goodman, a billing, a very large volume.

[00:41:06] Speaker 05:
So I think the gist of it is not, I don't want to, just on the allegations of the complaint, I think the gist of it is the idea that the hospital was complicit in knowingly submitting these bills even though there was perhaps improper, I'll say kickbacks to use the slang, compensation being funneled to physicians or their family members.

[00:41:30] Speaker 05:
I don't think that allegation, this allegation of a three-way, unproven, totally get that it's unproven, I don't think that allegation is the same as the type of fraudulent scheme that is alleged in the New York Times article.

[00:41:43] Speaker 01:
And my response to that, Your Honor, would be to the extent that that is what plaintiff is arguing in order to differentiate itself from the New York Times article, that there are insufficient factual allegations to survive 9b with respect to that fraud scheme.

[00:41:59] Speaker 01:
And we went over this, it's page 34 through 34 of our brief, Your Honor, and we addressed it.

[00:42:04] Speaker 01:
significantly.

[00:42:05] Speaker 01:
And in one of the earlier, I think it was the first amended complaint, for example, Cedars-Sinai was only mentioned fewer than a half dozen times in the complaint.

[00:42:13] Speaker 01:
There's no facts alleged about any coordination between Dr. Goodman, his brother, representatives of the hospital.

[00:42:21] Speaker 01:
There's no representatives of the hospital identified.

[00:42:24] Speaker 01:
There's no alleged correspondence between Biotronic and Cedars-Sinai with respect to implementing this scheme.

[00:42:31] Speaker 01:
And so it's

[00:42:32] Speaker 01:
We would argue, Your Honor, that if that is the theory that council is going to use or the relator is going to use to differentiate itself from the sources that would be the public disclosure bar that they haven't met their 9B standard and that they can't on that basis.

[00:42:46] Speaker 05:
That's helpful.

[00:42:47] Speaker 05:
I understand your response now much better than I did earlier.

[00:42:50] Speaker 05:
So although I think it might be in your brief, but I didn't understand it to responding to this point.

[00:42:56] Speaker 05:
So thank you.

[00:42:57] Speaker 07:
All right.

[00:42:58] Speaker 07:
Council, you've exceeded your time.

[00:42:59] Speaker 07:
Are there any other questions?

[00:43:01] Speaker 07:
Please wrap up.

[00:43:03] Speaker 01:
I have nothing further at this time.

[00:43:04] Speaker 01:
All right.

[00:43:04] Speaker 01:
Thank you, Council.

[00:43:05] Speaker 01:
Thank you.

[00:43:06] Speaker 01:
Actually, I take that back.

[00:43:07] Speaker 01:
One thing I would note, just to clarify some earlier points made, is that Silbershire did not change the inquiry with respect to the prior disclosure bar after the 2010 amendment.

[00:43:16] Speaker 01:
It's the same inquiry, which we would argue is the Matecki inquiry.

[00:43:20] Speaker 07:
All right.

[00:43:20] Speaker 07:
Thank you, Council.

[00:43:21] Speaker 07:
Rebuttal.

[00:43:22] Speaker 07:
One minute.

[00:43:27] Speaker 03:
Thank you, Your Honors, for the minute.

[00:43:31] Speaker 03:
Just to touch on the question of whether this lawsuit's parasitic to Bell, Sam Jones filed before Bell.

[00:43:39] Speaker 03:
So if anything, it's the other way around, and that's why a share was paid.

[00:43:42] Speaker 03:
to respond to the last argument about whether or not Cedars-Sinai just allowed these things to happen as a profit center.

[00:43:51] Speaker 03:
Not only that, we allege that they knew about the stark certifications, and they knowingly violated those stark certifications.

[00:44:03] Speaker 05:
There's some bare allegations along those lines, but opposing counsel's response is that you haven't met the 9b standard to really show

[00:44:09] Speaker 03:
allegations of fraud against the hospital and I tend to agree what's your best shot we have specific allegations about exactly who at the hospital what they did and when they did it and how they they allowed this compensation scheme to go forward because they knew that they would make money off of it

[00:44:29] Speaker 03:
and they falsely certified compliance with Stark and AKS.

[00:44:32] Speaker 03:
Those allegations are extremely detailed, and there are a lot more facts in that complaint than anything that was publicly disclosed.

[00:44:41] Speaker 03:
And that would survive Rule 9B, and it does.

[00:44:45] Speaker 03:
I see I'm not reaching it, but the complaint has a lot of details.

[00:44:51] Speaker 03:
We spent a lot of time making sure we met every aspect of it.

[00:44:54] Speaker 05:
Just to be clear, which complaint are you talking about?

[00:44:56] Speaker 05:
The second amended complaint?

[00:44:57] Speaker 03:
Yeah, the second amended complaint.

[00:44:58] Speaker 03:
The third amended complaint is only amended with respect to the original source and the pre-filing disclosure.

[00:45:05] Speaker 07:
I read the second amended complaint, so thank you.

[00:45:07] Speaker 07:
All right.

[00:45:07] Speaker 07:
Thank you, counsel.

[00:45:09] Speaker 07:
Thank you to all counsel for your helpful arguments on this case.

[00:45:13] Speaker 07:
The case just argued is submitted for decision by the court.