Is the Whistleblower Action “Based Upon” the Public Disclosure?
If there has been a public disclosure, the whistleblower’s action will be dismissed if it is “based upon” that disclosure, unless the whistleblower is an original source. A whistleblower action will be deemed “based upon” a public disclosure if the prior public disclosure sets out either the allegations advanced in the qui tam action or all of the essential elements of the whistleblower’s claims.14 Significantly, a whistleblower action may be barred even if it is only partially based upon a public disclosure. All of the Circuits that have addressed the issue have held that suits based even in part on publicly disclosed information are subject to the public disclosure bar.15 A majority of the Circuits that have considered the “based upon” language have interpreted the phrase “based upon” to mean “supported by.”16 In these Circuits, an action can be “based upon” a public disclosure, even if the whistleblower is completely unaware of the public disclosure.17 This is not the case, however,
