[00:00:05] Speaker 01:
Mr. Kemp, correct?

[00:00:07] Speaker 03:
Yes, your honor.

[00:00:08] Speaker 03:
Good morning.

[00:00:08] Speaker 03:
May it please the court?

[00:00:10] Speaker 03:
I'm James Kemp representing the appellant Thomas Mooney.

[00:00:13] Speaker 03:
I'm going to watch the clock and try to reserve three minutes for rebuttal.

[00:00:17] Speaker 03:
We have two appeals on today, one from the order granting summary judgment and the other one from an order awarding attorney's fees to the defendants.

[00:00:28] Speaker 03:
In this case, the district court erred in that it failed to properly follow the summary judgment standard.

[00:00:34] Speaker 03:
The district court did not view the evidence in the light most favorable to Mr. Mooney as the non-moving party, failed to draw reasonable inferences in his favor, and appears to have made credibility determinations and weighed the evidence, which is improper.

[00:00:52] Speaker 03:
Genuine disputes of material fact are critical.

[00:00:56] Speaker 03:
this case.

[00:01:01] Speaker 03:
The defendant is not

[00:01:12] Speaker 03:
the three claims, the statutory claim under 31 USC 3730H, which is the whistleblower protection of the False Claims Act.

[00:01:21] Speaker 03:
We also have a breach of contract claim and alternatively a breach of the implied covenant of good faith and fair dealing.

[00:01:28] Speaker 03:
I'll start with the summary judgment issues and proceed to the attorney's fees issues.

[00:01:35] Speaker 03:
Does the court have any questions before I?

[00:01:37] Speaker 01:
I would like to ask, as you know,

[00:01:40] Speaker 01:
don't approve a false claim, you got to show cyanter.

[00:01:43] Speaker 01:
And of course, every improper bill doesn't represent a false claim.

[00:01:50] Speaker 01:
What does reminding a medical practitioner in this case, to use proper medical billing procedures, how does that constitute a protected activity?

[00:01:59] Speaker 03:
Well, what took place in this case was well beyond just reminding Dr. Fife of this.

[00:02:07] Speaker 03:
On several occasions, Mr. Mooney, who had been hired as the chief operating officer, went to Dr. Mooney and said, I'm seeing up coding, I'm seeing unbundling, I'm seeing the passing off of laypeople's work as doctors.

[00:02:23] Speaker 03:
It's going into the electronic medical records

[00:02:26] Speaker 03:
it's going to be coming out as fraudulent billing to Medicare, for example.

[00:02:31] Speaker 01:
And on several occasions... What was he hired to do in the first place?

[00:02:37] Speaker 03:
So he was hired to be the chief operating officer.

[00:02:39] Speaker 03:
He was going to be overseeing financial aspects of the practice.

[00:02:44] Speaker 01:
So the billing would have been right up his alley, right?

[00:02:47] Speaker 03:
Billing would have been one thing that came under his control, although billing was being done by staff.

[00:02:52] Speaker 01:
So if it was being done wrong, would that partly be his fault?

[00:02:57] Speaker 03:
Well, that was part of his concern that he went to the doctor.

[00:02:59] Speaker 03:
He said, there are criminal and civil liability issues here that extend beyond just the practice, but to the people who are involved.

[00:03:08] Speaker 03:
And I have knowledge of this.

[00:03:09] Speaker 03:
And I'm telling you, you're putting yourself and you're putting other people in jeopardy of criminal and civil liability.

[00:03:16] Speaker 03:
That goes well beyond just a clerk who puts

[00:03:19] Speaker 03:
in a report and shoves in a drawer, something saying, oh, I think this is wrong.

[00:03:23] Speaker 03:
He's going straight to the CEO, the owner of the business, and he's telling him, you are in jeopardy of criminal and civil liability.

[00:03:30] Speaker 02:
One of the requirements you have to show, as I understand it, I mean, clearly you've presented sufficient evidence to create a triable issue as to whether he believed that they were committing or

[00:03:45] Speaker 02:
risk of committing fraud against the government or submitting fraudulent claims.

[00:03:50] Speaker 02:
But as I understand our case law, you have to also show an objective requirement that you put enough evidence in that you've established that a reasonable person would share that belief.

[00:04:01] Speaker 02:
The belief has to be objectively reasonable.

[00:04:03] Speaker 02:
What evidence did you put in apart from his say so that would establish that

[00:04:10] Speaker 03:
Objectively a reasonable person would understand that there was this as you're saying significant risk that they were submitting false claims right well it is principally his Testimony is his deposition and you could refer to deposition testimony that he gave at excerpts of record 148 149 151 152 153 where he explains the specifics about the Medicare billing and the coding

[00:04:40] Speaker 03:
what he was seeing in terms of the up coding which is

[00:04:45] Speaker 02:
But does he have any objective evidence, any documents, any actual claims, anything written, any procedures?

[00:04:54] Speaker 02:
What does he have?

[00:04:58] Speaker 03:
You're correct.

[00:04:59] Speaker 03:
There are no specific corroborating documents per se.

[00:05:04] Speaker 03:
He was reviewing reports.

[00:05:06] Speaker 03:
He was reviewing things in the computer, and he was going to Dr. Fife with those.

[00:05:10] Speaker 03:
Well, counsel, the way I read his declaration,

[00:05:13] Speaker 04:
He's saying that he is complaining about a known fraudulent practice, which is having non-medical personnel use a billing code, which can only be used by medical personnel.

[00:05:28] Speaker 04:
I'm looking, for example, at page 15 of his declaration.

[00:05:31] Speaker 04:
And this is a well-known fraud in the medical industry.

[00:05:34] Speaker 03:
Yes, and you're absolutely correct, Judge.

[00:05:36] Speaker 03:
That is well-known, along with up-coding and the unbundling.

[00:05:40] Speaker 04:
Up-coding.

[00:05:41] Speaker 04:
Unbundling and having non-medical personnel do work that's billed is a well-known way of getting money you're not entitled to.

[00:05:50] Speaker 03:
Correct.

[00:05:50] Speaker 03:
And these are exactly the things that Mr. Mooney brought to Dr. Fife's attention and said, there are criminal and civil liability problems that you're facing here.

[00:06:01] Speaker 01:
So I guess what I'm struggling with here is, is this a protected activity?

[00:06:05] Speaker 01:
If you had a different job, I wouldn't have any trouble with this.

[00:06:11] Speaker 01:
But his job, as I understood it, was to basically avoid these very kinds of things.

[00:06:16] Speaker 01:
As I understood it, without even talking to Dr. Fife, he could have corrected the problem.

[00:06:21] Speaker 01:
Is that wrong?

[00:06:23] Speaker 03:
I think that is wrong in the circumstances that he was facing.

[00:06:29] Speaker 03:
He had just started.

[00:06:30] Speaker 03:
He'd been there less than 12 weeks before they fired him.

[00:06:34] Speaker 01:
But he was in charge, one of his duties was billing.

[00:06:38] Speaker 03:
Right?

[00:06:38] Speaker 03:
That's true.

[00:06:40] Speaker 03:
But he also says that Dr. Fife is intimately involved with all aspects of the practice.

[00:06:45] Speaker 01:
Did he say that Dr. Fife knew about and condoned each of these things?

[00:06:52] Speaker 03:
That Dr. Fife knew about it and was not doing anything about it.

[00:06:55] Speaker 03:
So that would be condoning it, I suppose, or ratifying it because he's not taking actions to correct the problem.

[00:07:02] Speaker 04:
The declaration says he told Dr. Fife on multiple occasions Dr. Fife would look into it and at least according to him,

[00:07:08] Speaker 04:
Dr. Fife never did anything.

[00:07:10] Speaker 03:
That's correct.

[00:07:11] Speaker 03:
And finally, when on the last occasion, which was June 16th of 2017, where he's telling him, you know, you've got these issues and five days later he was terminated.

[00:07:22] Speaker 03:
So there's this direct, you know, causal, you know, this temporal proximity that shows the causation.

[00:07:31] Speaker 01:
Let's get to that part of it.

[00:07:32] Speaker 01:
I mean, as you very well know,

[00:07:35] Speaker 01:
Your client claims to have alleged prima facie case.

[00:07:40] Speaker 01:
And the question is whether there is a legitimate reason to terminate your client.

[00:07:46] Speaker 01:
Dr. Five says, hey, he breached the confidence.

[00:07:50] Speaker 01:
This is very important.

[00:07:52] Speaker 01:
He told somebody that I was interested in a practice.

[00:07:54] Speaker 01:
It screwed everything up.

[00:07:56] Speaker 01:
It cost me a lot of money.

[00:07:57] Speaker 01:
He breached his contract.

[00:07:58] Speaker 01:
That's why I fired him.

[00:08:00] Speaker 03:
No, and that is what their argument is, but it's wrong because when you look at exactly what took place, Mr. Mooney was, as the COO, he was overlooking at financial information and aspects of a practice that Dr. Fife was looking at acquiring, practice owned by Dr. Landau.

[00:08:19] Speaker 03:
While he's there performing that task, which Dr. Landau clearly knew that his practice was being looked at and being considered for acquisition, Dr. Landau comes in

[00:08:27] Speaker 03:
and says something along the lines of I hear that Fife is looking to buy Saul Shriver's practice.

[00:08:35] Speaker 03:
Mr. Mooney says,

[00:08:37] Speaker 03:
We're here, we're looking at business.

[00:08:39] Speaker 03:
We're in the market is I guess the term that he uses.

[00:08:43] Speaker 03:
We're in the market, but you'll have to talk to Dr. Fife.

[00:08:46] Speaker 03:
He doesn't confirm that they're looking at TRIVER.

[00:08:50] Speaker 03:
He doesn't deny it either.

[00:08:51] Speaker 03:
What he does is he says, go talk to Dr. Fife about these issues.

[00:08:54] Speaker 03:
I have nothing to say to you about this.

[00:08:56] Speaker 04:
I'm going to ask your friend this question too.

[00:08:58] Speaker 04:
Is there any dispute that Dr. Landau knew that

[00:09:04] Speaker 04:
your client was there doing due diligence for the possible acquisition of his practice, that that was the purpose he was at Dr. Landau's office?

[00:09:14] Speaker 03:
There is absolutely nothing to suggest that Dr. Landau didn't know that.

[00:09:18] Speaker 03:
I mean, he's in Dr. Landau's office looking at documents and at aspects of the practice.

[00:09:26] Speaker 04:
Is there any evidence that anybody put in the record that Dr. Landau could have thought he was there for another reason?

[00:09:32] Speaker 03:
No, there's nothing to suggest that at all.

[00:09:34] Speaker 03:
There was no other reason for Mr. Mooney who worked for Dr. Fife to be in Dr. Landau's office except because.

[00:09:40] Speaker 03:
Looking at confidential records.

[00:09:41] Speaker 03:
Landau and Fife were talking about potential acquisition and they were doing due diligence and that's what he was there.

[00:09:47] Speaker 03:
He wasn't the only one, there was a whole team of people from Fife's office there performing that task.

[00:09:53] Speaker 03:
And so, Your Honor.

[00:09:55] Speaker 01:
Again, my colleague of course has pointed out something that Landau would know, but it seemed to me from what I read in the record,

[00:10:04] Speaker 01:
It was the possible acquisition of the other person that created the problem because Dr. Landau didn't like him.

[00:10:11] Speaker 01:
He didn't want anything to do with him, if I understood correctly, and it was that that created the problem.

[00:10:16] Speaker 03:
That seems to have been the implication, but Mr. Mooney had nothing to do with that.

[00:10:20] Speaker 03:
He didn't say, oh yeah, we're looking at trivers practice.

[00:10:23] Speaker 03:
He didn't say that.

[00:10:24] Speaker 01:
He said... He was asked about trivers practice though, right?

[00:10:28] Speaker 03:
He was asked about that by Landau.

[00:10:31] Speaker 01:
And his response was... In your view, what did he say or do in response?

[00:10:37] Speaker 03:
What he actually said was, you know, we're here looking at your practice.

[00:10:43] Speaker 03:
You know, Dr. Fife's in the market.

[00:10:44] Speaker 03:
You'll have to talk to him about anything else.

[00:10:46] Speaker 01:
So basically, he said, you know, we're here.

[00:10:50] Speaker 01:
He's in the market.

[00:10:52] Speaker 01:
So he didn't say we're not doing it.

[00:10:54] Speaker 01:
He just basically

[00:10:56] Speaker 01:
The specter was there from at least one argument.

[00:10:59] Speaker 03:
Right.

[00:11:01] Speaker 03:
He didn't confirm it.

[00:11:02] Speaker 03:
He didn't deny it.

[00:11:02] Speaker 03:
He said, go talk to Dr. Fife.

[00:11:04] Speaker 03:
I don't have anything to say to you about this, which I think is the appropriate thing to do.

[00:11:08] Speaker 03:
He's there and he's confronted by this guy who seems to be kind of upset.

[00:11:12] Speaker 04:
How long was this conversation before he was fired?

[00:11:15] Speaker 03:
It took place on June 1st.

[00:11:19] Speaker 03:
He was fired on June 21st, three weeks later.

[00:11:22] Speaker 03:
And your honor, when he was fired, Dr. Fife, and you can look at excerpts of record 197 and 199, Dr. Fife sends out emails to the board and to the providers in the practice.

[00:11:35] Speaker 03:
He doesn't say anything about breach of confidentiality.

[00:11:38] Speaker 03:
He says in the last few days I've decided that essentially I don't like Tom Mooney because I think he's causing some some consternation amongst staff.

[00:11:50] Speaker 03:
Does not tell the board, does not tell the providers that there's anything having to do with confidentiality.

[00:11:58] Speaker 02:
Can I go back to the objective reasonableness issue?

[00:12:02] Speaker 02:
Did you

[00:12:03] Speaker 02:
explore and discovery getting some of the records that you could actually like show.

[00:12:09] Speaker 02:
Here's an example of something where

[00:12:12] Speaker 03:
You know someone who wasn't qualified to be listed as a medical assistant was and that's a false claim or someone Here's one that was upcoded No, there were a few problems with that first of all HIPAA medical records of people that have nothing to do with the case and second of all Mr. Mooney wouldn't necessarily remember

[00:12:34] Speaker 03:
Exactly who which ones to look at because it had been quite a while this case was in under seal permitted in him and did you try and get discovered it was they were Discovery permitted in that area.

[00:12:46] Speaker 03:
No, we didn't we didn't look into that.

[00:12:48] Speaker 03:
I felt it was kind of I Felt it's kind of hopeless and in terms of you know getting around HIPAA and getting private medical records or even if we acted I so I didn't really even occur to me to be honest your honor, but I

[00:13:02] Speaker 01:
Yeah, I want to save the balance your time entirely up to your with you down to two minutes.

[00:13:06] Speaker 01:
So many seconds.

[00:13:07] Speaker 03:
Well, I just like to say quickly on the other issue of the attorney's fees award.

[00:13:12] Speaker 03:
I think our briefing's pretty clear on that.

[00:13:15] Speaker 03:
There was some suggestion in the opposition that we hadn't raised it, and we clearly did.

[00:13:19] Speaker 03:
If you look at the opposition, the district court's record at ECF 93, we do say that you can't award attorney's fees against a person who brings a whistleblower case when they fail.

[00:13:33] Speaker 03:
And we also say if you're going to award fees under this contract, you have to be able to separate out the contract issues.

[00:13:39] Speaker 03:
the district court said it was impossible to do.

[00:13:41] Speaker 03:
The defendants didn't even try to separate them out.

[00:13:44] Speaker 03:
So basically, you're chilling whistleblowers from coming forward if you permit the attorney's fees award in this case to stand, Your Honors.

[00:13:54] Speaker 03:
With that, I'll reserve the rest of my time.

[00:13:57] Speaker 01:
All right.

[00:14:00] Speaker 01:
Ms.

[00:14:01] Speaker 01:
Dove, is that correct?

[00:14:02] Speaker 00:
Yes, thank you, Your Honor.

[00:14:03] Speaker 00:
Good morning.

[00:14:04] Speaker 00:
Kelly Dove on behalf of Appalize.

[00:14:07] Speaker 00:
Our position is that first, Mr. Mooney failed to demonstrate a prima facie case, starting with engaging in protected conduct under the act.

[00:14:17] Speaker 00:
To your Honor's point, we do not think he demonstrated objective reasonableness at all.

[00:14:22] Speaker 00:
He sort of acted as his own expert in the briefing, saying

[00:14:27] Speaker 00:
He's sort of hand waving that these things are well established.

[00:14:30] Speaker 00:
But when questioned about what precisely was the problematic activity or what this was based on, there was really nothing behind it.

[00:14:40] Speaker 00:
For example, the medical assistant.

[00:14:43] Speaker 00:
the person who comes and puts you in the room and says, what brings you here today?

[00:14:46] Speaker 00:
He says in his deposition, we have to get these people some sort of certification.

[00:14:52] Speaker 00:
They're just putting notes in the chart.

[00:14:54] Speaker 00:
There's no evidence that their time is being billed as a medical provider.

[00:14:58] Speaker 01:
So that gets back to the point that Judge Collins raised before, right?

[00:15:02] Speaker 01:
That he's made these allegations, but there is no specific documented evidence that this was being done.

[00:15:09] Speaker 01:
Is that correct?

[00:15:09] Speaker 00:
Right.

[00:15:10] Speaker 00:
And not only is there no specific evidence, he acknowledges in his opening brief that he never actually reviewed any bills.

[00:15:18] Speaker 00:
And while somebody's investigation need not be complete to satisfy this requirement, he was still getting his feet wet in the practice of dermatology.

[00:15:27] Speaker 00:
He didn't look at bills.

[00:15:29] Speaker 00:
He just sort of vaguely believed there to be irregularities after his experience in an orthopedic practice.

[00:15:35] Speaker 00:
But I think more simply, and I'm happy to discuss that further, more simply, he cannot satisfy the standard that he made his employer aware that he was engaging in protected activity because the kind of activity that he engaged in in his informing his employer is exactly the kind of kind of statement that would be in his job compliance.

[00:16:01] Speaker 04:
Where is that in the statute?

[00:16:03] Speaker 04:
I'm looking at 3730H.

[00:16:07] Speaker 04:
Any employee who is discharged because of lawful acts in furtherance of, for example, other efforts to stop one or more violations of this subchapter is retaliated against.

[00:16:21] Speaker 04:
What you're talking about there, that it's part of his job, how do we square that with the statute that says any employee?

[00:16:30] Speaker 00:
So I think because that's in this discussed in this court's decisions in Campy v. Gilead Sciences, Hopper, Cafasso.

[00:16:40] Speaker 04:
That was not our holding.

[00:16:41] Speaker 04:
Other circuits may have said that, but we've never said that explicitly, have we?

[00:16:45] Speaker 00:
I thought that was in Campy v. Gilead, but in the Dunlap case, which is admittedly a

[00:16:51] Speaker 00:
district court case, it discusses a situation that is on all fours with this case where it's undisputed that Mr. Mooney's job was compliance with Medicare and Medicaid.

[00:17:04] Speaker 04:
But putting aside the question, and the case says what it says, but putting that aside, how does that square with the statute which says any employee?

[00:17:15] Speaker 00:
Well, I think the text of the statute does say any employee and and mr. Mooney is protected by that statute But I think the idea is that if you are a compliance officer Whose job is compliance with Medicare and Medicaid if you go to your employer and say I have concerns with these practices I think they might be unlawful under under the regulation was an artifact of the

[00:17:37] Speaker 02:
pre-amendment version of the statute.

[00:17:40] Speaker 02:
I think that's what Judge Bennett is getting at.

[00:17:42] Speaker 02:
When the statute used to require in furtherance of an action under this section, then if it's your job to discover fraud, the mere fact that you're coming up with fraud may just say you're doing your job and not that you're pursuing an FCA action.

[00:17:58] Speaker 02:
But then Congress amended the statute so that it just says

[00:18:02] Speaker 02:
that you're doing actions in furtherance of efforts to stop violations.

[00:18:07] Speaker 02:
So all this stuff about whether it's in your job is out the window under the amendment.

[00:18:12] Speaker 02:
It seems to me, unless you have a case law, a case after the amendment that reiterates that rule and says it applies under the amendment, do you have such a case?

[00:18:22] Speaker 00:
I don't have a case for that.

[00:18:24] Speaker 00:
I do think, though, Mr. Mooney acknowledges that he was never planning to make

[00:18:28] Speaker 00:
this public or pursue an FCA action.

[00:18:31] Speaker 00:
I mean, he testified in his... But that's not required.

[00:18:33] Speaker 02:
That would be required under the first clause.

[00:18:36] Speaker 02:
All you have to be doing... I mean, this seems exactly what the amendment is getting at.

[00:18:41] Speaker 02:
You get a new employee, he comes in there, he looks at things and he's like, you've got a lot of problems in this organization and you need to fix this, you need to fix that.

[00:18:50] Speaker 02:
And the CEO doesn't want to hear any of it and fires him on what really seems like a trumped up ground.

[00:18:55] Speaker 02:
This seems exactly what this statute

[00:18:57] Speaker 02:
is trying to get at.

[00:18:59] Speaker 00:
So to that point, I mean, I don't think it's a trumped up ground when you look at the... It is a trumped up ground.

[00:19:07] Speaker 02:
When you have confidential information that you can impart and then someone else asks you about the confidential fact, what's the only thing you can do?

[00:19:16] Speaker 02:
Neither confirm or deny.

[00:19:17] Speaker 02:
And that's exactly what he did.

[00:19:19] Speaker 02:
He did not confirm that they had an interest in the other practice.

[00:19:22] Speaker 02:
He did not deny it.

[00:19:23] Speaker 02:
He said, go talk to the CEO.

[00:19:26] Speaker 02:
And you've taken the view that that is

[00:19:29] Speaker 02:
disclosure of confidential information worthy of firing him.

[00:19:33] Speaker 00:
Yes, we've taken the view that his comments were confirmatory.

[00:19:37] Speaker 02:
The literal language which you quote in your brief, how is that confirmatory?

[00:19:43] Speaker 02:
Dr. Landau

[00:19:46] Speaker 02:
asked me if we were purchasing or going to acquire or do anything with Dr. Shriver.

[00:19:51] Speaker 02:
And I said, as I've said a couple of times here, Fife Dermatology is looking at a lot of different things, as you know, and if you have any concerns about anything, please give Dr. Fife a call.

[00:20:02] Speaker 02:
That doesn't confirm that they have an interest in that particular practice.

[00:20:06] Speaker 00:
Well, I mean, we think that not just saying we're in the market, as you know, he says, you know, as you know, we're looking at a lot of different practices.

[00:20:15] Speaker 00:
And Dr. Landau clearly interpreted that to be confirmatory.

[00:20:19] Speaker 04:
I'm sorry, where does it say, as you know, we're looking at a lot of different practices?

[00:20:24] Speaker 04:
What page are you on?

[00:20:25] Speaker 00:
A lot of different things.

[00:20:26] Speaker 04:
A lot of different things is different than a lot of different practices.

[00:20:30] Speaker 00:
Sorry, ER 134.

[00:20:31] Speaker 00:
So he said, as I've said a couple of times here,

[00:20:35] Speaker 00:
Fife Dermatology is looking at a lot of different things.

[00:20:38] Speaker 00:
But on page ER 139 to 140, he does say, and my answer to him was, we're looking at a lot of different practices as well as looking at yours.

[00:20:48] Speaker 00:
And that's what Dr. Fife has me doing at this point.

[00:20:52] Speaker 00:
So I apologize, I conflated those two quotations, but he does say both.

[00:20:56] Speaker 00:
And he says, and I have some of the direct quotes here just for reference.

[00:21:01] Speaker 04:
In your view, what was he supposed to say?

[00:21:05] Speaker 04:
Obviously, Dr. Landau, according to his story, knows about Dr. Schreiber.

[00:21:10] Speaker 04:
He specifically asked, this is somebody they need to acquire or they want to acquire.

[00:21:15] Speaker 04:
He's there for due diligence.

[00:21:17] Speaker 04:
So in your view, what was it that he was supposed to have said?

[00:21:21] Speaker 00:
I think something as simple as I really can't comment on that.

[00:21:24] Speaker 00:
Just nothing that would be confirmatory, which suggested that, I mean, he really threw fuel on the fire because Dr. Landau thinks he's there to acquire Dr. Landau's practice.

[00:21:36] Speaker 04:
But he's also there to try to establish a good relationship with Dr. Landau, right?

[00:21:44] Speaker 04:
Because that's who your boss, that's who Dr. Fife is looking at acquiring, right?

[00:21:49] Speaker 00:
Right, so they definitely have an interest in acquiring Dr. Landau.

[00:21:52] Speaker 04:
So the confidentiality provision starts out, administrator, that's Mr. Mooney, right?

[00:21:59] Speaker 00:
That's right.

[00:22:00] Speaker 04:
Shall not at any time, comma, accept as required in the normal course of his engagement here under.

[00:22:08] Speaker 04:
isn't trying to balance keeping Dr. Landau happy, but not specifically talking about Dr. Schreiber.

[00:22:19] Speaker 04:
Couldn't a reasonable jury find that that was something, even if this was confidential, was in the ordinary course, the normal course of his engagement?

[00:22:30] Speaker 00:
I don't think so, because he could have politely said words to the effect of, I'm new here.

[00:22:37] Speaker 00:
I'm not in a position to comment about that.

[00:22:39] Speaker 00:
Something where he really wasn't giving confirmation that apparently they could have been looking at Dr. Schreiber's practice, where it turns out that Dr. Landa could have been.

[00:22:51] Speaker 00:
Because there's no, I mean, other than Mr. Mooney's disclosing, or at least they're in the market and sort of confirming that they're looking at Dr. Schreiber's practice, there's no other evidence in the record to that effect.

[00:23:05] Speaker 04:
So I'm looking also at addendum A of his contract under core values being completely honest.

[00:23:14] Speaker 04:
That was one of his job responsibilities too?

[00:23:17] Speaker 00:
Yes.

[00:23:18] Speaker 04:
So he certainly couldn't have lied to Dr. Landau.

[00:23:20] Speaker 00:
No, I'm not suggest.

[00:23:22] Speaker 00:
That's why I said that no comment.

[00:23:23] Speaker 04:
No, no.

[00:23:23] Speaker 04:
You didn't suggest that.

[00:23:24] Speaker 04:
But he, in the normal course of his activities, he has to find a balance between not confirming Dr. Schreiber and not getting Dr. Landau mad.

[00:23:36] Speaker 00:
Sure.

[00:23:36] Speaker 00:
And I think the confidentiality provision is not unlike a legal confidentiality provision, where it might be uncomfortable to be asked a direct question that you're not able to answer.

[00:23:50] Speaker 00:
But to just candidly acknowledge that you cannot answer that.

[00:23:56] Speaker 02:
Could a reasonable jury, reading the quote that I read, read that as being neither confirming nor denying?

[00:24:05] Speaker 00:
I mean, our position is that it's confirmatory.

[00:24:10] Speaker 02:
I know you read it the other way, but it's at best ambiguous, and we hear on summary judgment.

[00:24:16] Speaker 00:
I understand your Honor's point.

[00:24:17] Speaker 00:
I mean, in rereading all of his comments today, I mean, he makes a lot of different, he gives a lot of different versions of what he said.

[00:24:26] Speaker 00:
The district court sort of seized on the, we're in the market version, but throughout Mr. Mooney's deposition, he says things, you know, we're looking at a lot of different options, we're looking at a lot of different practices.

[00:24:39] Speaker 00:
Which I think it's just, I don't think there's a fair, truly fair reading of that that's not confirmatory as to looking at Dr. Schreiber's practice.

[00:24:52] Speaker 02:
But if we disagree with you on that point, then the contract claim would have to be reversed, correct?

[00:24:59] Speaker 00:
I think if you found that there was a genuine issue of fact on whether Mr. Mooney breached that provision, that yes, and that is the basis for the summary judgment ruling.

[00:25:09] Speaker 00:
And just to get to the breach of the covenant of good faith and fair dealing, if there were a question of fact in the market and we're looking at lots of practices, then the analysis would be different.

[00:25:24] Speaker 00:
But we still don't think there's a good faith and fair dealing claim here where the exact same conduct is being alleged underlying both claims.

[00:25:35] Speaker 02:
So if we were to find a triable issue on the contract,

[00:25:39] Speaker 02:
and then reverse that and send that back, what would we do with the good faith claim in your view?

[00:25:47] Speaker 00:
Well, if there was a question on breach, then I think the good faith and fair dealing claim just would not would not be needed.

[00:25:54] Speaker 00:
He said he plotted in the alternative.

[00:25:56] Speaker 02:
Normally, you know, when claims are pled in the alternative and one of them is still up in the air, we we can as a matter of law

[00:26:05] Speaker 02:
kill the other ones so wouldn't it have to go back and let it all be live back in the district court to sort out.

[00:26:11] Speaker 00:
Well I don't think there's a live good faith and fair dealing claim either way because there's no there's no allegation that we technically complied with the contract but

[00:26:22] Speaker 00:
performed in a way that thwarted the purpose of the contract.

[00:26:25] Speaker 00:
Because if Mr. Mooney, if there was a breach because Mr. Mooney breached, then we were fully entitled to terminate him for cause.

[00:26:34] Speaker 00:
And if we breached because we wrongly terminated him for cause, those are just both squarely in the breach of contract

[00:26:43] Speaker 00:
category, and there's nothing left for good faith and fair dealing.

[00:26:46] Speaker 02:
No matter what happens with the breach of contract, the other one just isn't viable.

[00:26:50] Speaker 02:
It actually isn't really an alternative claim.

[00:26:52] Speaker 02:
It just doesn't have a basis.

[00:26:53] Speaker 00:
Right.

[00:26:54] Speaker 02:
Regardless.

[00:26:55] Speaker 00:
Exactly, because he said he pled it in the alternative, but there's really not an alternative freestanding claim here.

[00:27:02] Speaker 01:
Do I understand correctly that in response to Judge Bennett, primarily, comments about the governing portion of the contract,

[00:27:11] Speaker 01:
But if that is ambiguous and what Mr. Mooney said was an ambiguous response, then that something has to go back to the district court.

[00:27:19] Speaker 00:
I mean, I can't concede that, but I think, because we think it's confirmatory, but that is the linchpin of the district court's summary judgment ruling.

[00:27:27] Speaker 00:
Sure.

[00:27:27] Speaker 01:
I mean, that is certainly, that was certainly the center of the summary judgment ruling and what that... What's your response, putting that aside, Ramont, as you know, opposing counsel has raised the attorney fee issue.

[00:27:38] Speaker 01:
Anything you would like to comment on that?

[00:27:40] Speaker 00:
Two points on the attorney fee issue.

[00:27:43] Speaker 00:
First is our billing records that we submitted for attorney's fees started only at the point of the second amended complaint.

[00:27:50] Speaker 00:
So they already omitted everything that dealt with the false claims act that came before.

[00:27:55] Speaker 00:
And we would not be in any strong opposition to a remand for

[00:28:00] Speaker 00:
removing entries that were specific to the false claims act.

[00:28:05] Speaker 00:
So we don't have a strong position on that.

[00:28:09] Speaker 00:
Otherwise, we think they were correctly awarded under the contractual provision providing

[00:28:15] Speaker 00:
for fees.

[00:28:17] Speaker 00:
And I know I just have less than a minute left.

[00:28:20] Speaker 02:
So I. Yes.

[00:28:25] Speaker 00:
Yes.

[00:28:26] Speaker 00:
I did just want to go back to the objective reasonableness, which we don't think there was a showing of objective reasonableness here, especially because

[00:28:35] Speaker 00:
Mr. Mooney was just getting his feet wet.

[00:28:38] Speaker 00:
There's no indication that there was actually anything unlawful going on here.

[00:28:43] Speaker 02:
I mean, how long was this pending as an FCA action before that was dismissed?

[00:28:49] Speaker 00:
I think it was about more than two years.

[00:28:53] Speaker 02:
Was there any discovery into billing records?

[00:28:57] Speaker 02:
I mean, I would have thought at the FCA phase, there would have been some of that and it might have made it into the record on this objective issue.

[00:29:05] Speaker 00:
There's nothing in the record supporting his claims of unlawful billing practices whatsoever, but he also has indicated... Was there discovery at the FCA phase into that?

[00:29:20] Speaker 02:
Were there any documents produced?

[00:29:23] Speaker 00:
There was discovery.

[00:29:24] Speaker 00:
There were discovery requests going back and forth, and there's nothing in the record whatsoever that shows that medical assistants were being billed

[00:29:33] Speaker 00:
As providers, there's nothing in the record that shows up charging.

[00:29:36] Speaker 00:
I mean, he acknowledges himself, he never got around to looking at bills.

[00:29:41] Speaker 00:
He never got around to researching what was wrong with the billing practices here.

[00:29:47] Speaker 00:
His deposition is replete with comments that he never got around to sort of researching and figuring out what might have been wrong with this or familiarizing himself with dermatology as he was also required to do by his contract.

[00:30:00] Speaker 00:
I think going back to that point, there's a lack of showing that he met his burden on the objective reasonableness.

[00:30:05] Speaker 00:
And I appreciate that I am over my time.

[00:30:08] Speaker 00:
So thank you very much.

[00:30:09] Speaker 01:
So just to be sure, you are contending that even though he claimed these things were occurring, no documentation was ever provided showing that that was occurring or that he ever examined that.

[00:30:21] Speaker 00:
That's right.

[00:30:21] Speaker 00:
He has not even said that he reviewed documentation or a single bill that ever went out the door or a single bill that he ever saw prepared that was in violation.

[00:30:31] Speaker 00:
So not only do we only have his say so, we only have his say so when he hasn't even looked at a single billing record that supports this claim.

[00:30:39] Speaker 01:
Thank you.

[00:30:40] Speaker 01:
Very well.

[00:30:41] Speaker 01:
All right.

[00:30:42] Speaker 01:
We have some rebuttal time.

[00:30:45] Speaker 03:
Mr. Kim?

[00:30:46] Speaker 03:
Thank you, Your Honor.

[00:30:49] Speaker 03:
To the last point,

[00:30:51] Speaker 03:
He was 12 weeks into a three-year contract.

[00:30:54] Speaker 03:
He hadn't been there all of the time.

[00:30:56] Speaker 02:
He was still in the process of looking through it.

[00:30:58] Speaker 02:
How did you have an FCA claim pending for so much time and not do discovery to get actual billing records and then find some examples and put them in to satisfy this objective element?

[00:31:08] Speaker 02:
Because without it, you may have a really meritorious FCA claim, but if you don't put the evidence in on the required elements, it's going to fail.

[00:31:17] Speaker 03:
And to that point, Your Honor, the False Claims Act part of this was, you know, they file it under seal and the government reviews it.

[00:31:26] Speaker 03:
And what happened in this case is the government reviewed it and they decided not to intervene.

[00:31:30] Speaker 03:
Mr. Mooney's counsel at the time, which does key tam class action kinds of cases,

[00:31:36] Speaker 03:
decided not to proceed.

[00:31:37] Speaker 03:
At that point, I was hired to handle the employment part.

[00:31:41] Speaker 02:
Without having conducted any discovery?

[00:31:43] Speaker 03:
Yeah, it doesn't move forward.

[00:31:44] Speaker 03:
It sits there under seal while the government decides whether or not it's going to come in.

[00:31:47] Speaker 02:
But he could have gone forward after the government declined and done some discovery.

[00:31:51] Speaker 03:
They could have done that.

[00:31:53] Speaker 03:
They bowed out, and I took over the employment law aspects, the employment aspects of the whistleblower claim.

[00:32:00] Speaker 01:
Do you agree that there is no evidence in the record that would

[00:32:05] Speaker 01:
validate the claim that your client made about basically the fraud that he saw in the practice?

[00:32:13] Speaker 03:
I don't agree with that.

[00:32:14] Speaker 03:
We have his testimony.

[00:32:15] Speaker 03:
He has 30 years of experience.

[00:32:17] Speaker 01:
Any documentation?

[00:32:18] Speaker 03:
There's no documentation.

[00:32:20] Speaker 01:
Did he ever look at the records?

[00:32:21] Speaker 03:
Yeah, he looked at records.

[00:32:23] Speaker 03:
He actually went into exam rooms and watched what they were doing putting things into the Electronic medical record and then he was getting the reports and from those report those reports indicated what was going to be going out with the billing so he didn't look at the bills themselves, but he looked at the reports that

[00:32:40] Speaker 03:
that reflect what the bills would be.

[00:32:42] Speaker 03:
And so that's what he was going off of.

[00:32:44] Speaker 03:
That was his own personal observation.

[00:32:46] Speaker 03:
That's the evidence along with his 30 years of experience in this field.

[00:32:51] Speaker 03:
And dermatology is not really much different when it comes to billing for Medicare and Medicaid.

[00:32:57] Speaker 04:
I was just going to ask, is there any, is this a ground that the district court granted summary judgment on that we're talking about here?

[00:33:05] Speaker 03:
The district court seems to have granted summary judgment only on its view that he had breached confidentiality, therefore... No, on the FCA claim.

[00:33:15] Speaker 04:
I read it as Vivita did not have notice that plaintiff was engaged in protected activity.

[00:33:22] Speaker 04:
under the FCA as the reason not he hasn't put in that there is any objective evidence, but I suppose the order says what it says.

[00:33:34] Speaker 03:
Well, and I think that goes to Judge Collins's point about the amendment in 2009-2010.

[00:33:37] Speaker 03:
That amendment changes, and so we get kind of this bleed over from the old cases that required you to actually be pursuing an FCA case.

[00:33:46] Speaker 03:
That's no longer the law.

[00:33:48] Speaker 03:
I've taken him over, I apologize.

[00:33:49] Speaker 03:
No, no, no, that's fine.

[00:33:50] Speaker 03:
So it goes to that point.

[00:33:52] Speaker 03:
And also, Your Honor's point, Judge Bennett, very much what we've been arguing is, if this is any employees, any employees are covered by this statute, you can't divide out people by, because they do different things.

[00:34:04] Speaker 03:
He went straight to the CEO.

[00:34:06] Speaker 03:
How is that not protected activity?

[00:34:08] Speaker 03:
He went straight to the CEO and said, we are facing criminal and civil liability.

[00:34:13] Speaker 01:
Okay.

[00:34:13] Speaker 01:
Thank you very much.

[00:34:14] Speaker 01:
Thanks to both counsel for the argument.

[00:34:16] Speaker 01:
The case of Mooney versus Five is submitted.