Notice of the United States of Its Opposition to Dismissal on the Basis of the Public Disclosure Bar — United States ex rel. GNGH2 Inc. v. XLD Century LLC (Dkt. 70, C.D. Cal.)

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The Notice of the United States of Its Opposition to Dismissal on the Basis of the Public Disclosure Bar in United States of America ex rel. GNGH2 Inc. v. XLD Century LLC and XLD Group LLC, No. 2:22-cv-05514-SB-PVCx, in the U.S. District Court for the Central District of California, dated April 11, 2024. Under 31 U.S.C. § 3730(e)(4)(A), the United States notifies the Court that it is exercising its right to object to dismissal of the relator's complaint on the basis of the Public Disclosure Bar. It notes that the defendants moved for summary judgment on April 1, 2024 on that ground and states that the motion to dismiss on it should be denied. The government takes no position on the other parts of the motions.

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Case 2:22-cv-05514-SB-PVC     Document 70 Filed 04/11/24   Page 1 of 3 Page ID
                                         #:665



1    E. MARTIN ESTRADA
     United States Attorney
2    DAVID M. HARRIS, AUSA
     Chief, Civil Division
3    ROSS M. CUFF, AUSA
     Chief, Civil Fraud Section
4    California State Bar No. 275093
           Room 7516, Federal Building
5          300 N. Los Angeles Street
           Los Angeles, California 90012
6          Tel: (213) 894-7388 Fax: (213) 894-7819
           Email: ross.cuff@usdoj.gov
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     Attorneys for the United States of America
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                              UNITED STATES DISTRICT COURT
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                      FOR THE CENTRAL DISTRICT OF CALIFORNIA
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13   UNITED STATES OF AMERICA ex                  No. 2:22-cv-05514-SB-PVCx
     rel. GNGH2 INC.,
14                                                NOTICE OF THE UNITED STATES OF
                Plaintiffs,                       ITS OPPOSITION TO DISMISSAL ON
15                                                THE BASIS OF THE PUBLIC
                       v.                         DISCLOSURE BAR
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     XLD CENTURY LLC and XLD
17   GROUP LLC,
18              Defendants.
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     Case 2:22-cv-05514-SB-PVC       Document 70 Filed 04/11/24         Page 2 of 3 Page ID
                                           #:666



1          Pursuant to the False Claims Act (“FCA”), 31 U.S.C. § 3730(e)(4)(A), the United
2    States of America notifies the Court that it is exercising its right to object to dismissal of
3    qui tam plaintiff (the “Relator”) GNGH2 Inc.’s complaint on the basis of the Public
4    Disclosure Bar.
5          On April 1, 2024, defendants XLD Century, LLC and XLD Group, LLC
6    (collectively “Defendants”) filed a motion for summary judgment arguing, inter alia,
7    that Relator’s action is barred under the FCA’s Public Disclosure Bar. Defendants argue
8    that Relator is not an “original source” of the information in its Complaint and that
9    substantially the same allegations had been publicly disclosed before Relator’s
10   Complaint was filed. See Dkt. 65-1 at 35-42.
11         The FCA states in pertinent part:
12         The court shall dismiss an action or claim under this section, unless opposed by
           the Government, if substantially the same allegations or transactions as alleged in
13         the action or claim were publicly disclosed-- (i) in a Federal criminal, civil, or
           administrative hearing in which the Government or its agent is a party; (ii) in a
14         congressional, Government Accountability Office, or other Federal report,
           hearing, audit, or investigation; or (iii) from the news media, unless the action is
15         brought by the Attorney General or the person bringing the action is an original
           source of the information.
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     31 U.S.C. § 3730(e)(4)(A) (emphasis added). In sum, the statute provides that, if the
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     United States objects, the court may not dismiss the action on the ground of public
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     disclosure. See, e.g., United States ex rel. Radcliffe v. Purdue Pharma Ltd. P’ship, 737
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     F.3d 908, 918 (4th Cir. 2013) (observing that the current public disclosure bar is “a non-
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     jurisdictional defense that is . . . subject to veto by the government”).
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           The United States hereby notifies that Court that it is exercising its right to object
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     to the dismissal of the action on this ground. Accordingly, Defendants’ motion to
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     dismiss on the ground of public disclosure bar should be denied.
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     //
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     Case 2:22-cv-05514-SB-PVC     Document 70 Filed 04/11/24      Page 3 of 3 Page ID
                                         #:667



1          The United States takes no position on any other portion of the parties’ motions
2    for summary judgment.
3                                       Respectfully submitted,
4     Dated: April 11, 2024             E. MARTIN ESTRADA
                                        United States Attorney
5                                       DAVID M. HARRIS, AUSA
                                        Chief, Civil Division
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                                        /s/ Ross M. Cuff
7                                       ROSS M. CUFF
                                        Assistant United States Attorney
8                                       Chief, Civil Fraud Section
                                        Attorneys for the United States of America
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