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Memorandum and Order — No. 1:20-cv-00538 (Dkt. 106, D.R.I.)

Summary

A Memorandum and Order, Document 106, filed September 26, 2025 in United States of America ex rel. James R. Berkley v. Ocean State, LLC, New Harbor Capital Fund, LP and other defendants, C.A. No. 20-cv-538-JJM-PAS (Case 1:20-cv-00538-JJM-PAS), in the U.S. District Court for the District of Rhode Island, signed by Chief Judge John J. McConnell, Jr. The relator filed a qui tam action under the False Claims Act, 31 U.S.C. § 3730, alleging that the defendants applied for and received Paycheck Protection Program funds and loan forgiveness when they knew they did not qualify. The court grants the defendants' motion for summary judgment (ECF No. 75) based on the public disclosure bar, denies the relator's motion for partial summary judgment (ECF No. 64), and concludes that it lacks subject matter jurisdiction.

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Full text

Case 1:20-cv-00538-JJM-PAS     Document 106 Filed 09/26/25       Page 1 of 14 PageID #:
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                       UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF RHODE ISLAND

                                          )
 UNITED STATES OF AMERICA, ex             )
 rel. JAMES R. BERKLEY,                   )
       Plaintiff,                         )
                                          )
       v.                                 )
                                          )
 OCEAN STATE, LLC; NEW HARBOR             )
                                                  C.A. No. 20-cv-538-JJM-PAS
 CAPITAL FUND, LP; NEW HARBOR             )
 CAPITAL FUND II LP; NEW                  )
 HARBOR CAPITAL MANAGEMENT                )
 LP; BLUEPRINT TEST                       )
 PREPARATION, LLC; and FYZICAL            )
 ACQUISITION HOLDINGS, LLC,               )
      Defendants.                         )
                                          )

                           MEMORANDUM AND ORDER

 JOHN J. MCCONNELL, JR., Chief Judge, United States District Court.

       Under the qui tam provisions of the False Claims Act (“FCA”), 31 U.S.C.

 § 3730, Relator James R. Berkley filed this lawsuit against Defendants Ocean State,

 LLC, Blueprint Test Preparation, LLC, Fyzical Acquisition Holdings, LLC (“PPP

 Recipients”), New Harbor Capital Fund LP, New Harbor Capital II LP, and New

 Harbor Capital Management LP (“New Harbor”), alleging that they violated the FCA

 by applying for and receiving Paycheck Protection Program (“PPP”)1 funds, and




       1 In response to the COVID-19 pandemic, Congress passed the Coronavirus

 Aid, Relief, and Economic Security Act (“CARES Act”). This law, among other things,
 established the Paycheck Protection Program that allowed small businesses
 adversely affected by COVID-19 to apply for and receive a loan to pay for, among
 other things, payroll costs. Various regulations and restrictions applied to PPP
 applicants and recipients including those that relate to the size of the company (the
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 getting loan forgiveness on those loans, when they knew they did not qualify.

 Defendants moved to dismiss the case, which the Court denied. Now, with the record

 fully developed and Mr. Berkley’s allegations tested during discovery, he filed a

 Motion for Partial Summary Judgment and Defendants filed a Motion for Summary

 Judgment. ECF Nos. 64, 75. Because the Court finds that discovery has not borne

 out Mr. Berkley’s allegations made to defeat the public disclosure bar, it GRANTS

 Defendants’ motion based on that FCA provision. ECF No. 75. The Court DENIES

 Mr. Berkley’s Partial Motion for Summary Judgment. ECF No. 64.

 I.    BACKGROUND

       The facts here are extensive so the Court will only recount those facts that are

 relevant to the disposition of this case.

       This lawsuit is against six companies. The PPP Recipients applied for and

 received PPP loans and loan forgiveness. The three New Harbor Defendants are

 private equity firms and the management company that employs the people who

 manage the investments. None of these entities applied for or received PPP loans.

       Mr. Berkley’s initial dispute here had nothing to do with the loans the PPP

 Recipients ultimately sought.      It started with his broken-down landlord-tenant

 relationship with Ocean State. When the COVID-19 pandemic hit businesses across

 the globe, Ocean State’s CEO, John Roselli emailed its landlords, including

 Mr. Berkley, notifying them that Ocean State believed it would not be able to pay its




 affiliation requirement) and whether the loan is necessary (the necessity
 requirement).


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 rent. Mr. Berkley spoke with Mr. Roselli after this email and suggested that Ocean

 State get the rent money from New Harbor; he believed that New Harbor’s controlling

 investment in Ocean State would require New Harbor to step in to make the

 payments. Mr. Roselli made it clear that that was not going to happen.

          To pressure Ocean State to settle the rent dispute, Mr. Berkley alleged that he

 began investigating its PPP loan applications. His investigation included reading

 publicly available information and speaking with Ocean State employees and others

 with knowledge of the fraud. Along with this information, his professed expertise in

 private equity allowed him to, mosaic-style, discern the PPP Recipients’ knowingly

 fraudulent loan applications and New Harbor’s complicity and encouragement in the

 fraud.

          Mr. Berkley filed a complaint under the FCA’s qui tam provision, which

 encourages private citizens, often whistleblowers with insider information, to come

 forward with claims of fraud on the government. Mr. Berkley amended it twice so

 the Second Amended Complaint (“Complaint”) is the operative one. ECF No. 28. In

 that Complaint, Mr. Berkley alleged that the PPP Recipients committed fraud

 because they falsely certified that they met the CARES Act’s affiliation and necessity

 requirements–essentially he asserted that Ocean State, Blueprint, and Fyzical did

 not meet the size requirement and they had plenty of funds available to them via New

 Harbor, a well-capitalized private equity firm, so they did not qualify for a PPP loan.

 He alleged that New Harbor’s liability is rooted in its ability to direct and control the

 PPP Recipients’ actions.




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       All Defendants moved to dismiss his Complaint on the grounds that it was

 barred by the public disclosure provision and on substance for failure to state a claim.

 ECF No. 29. The Court denied the motion, finding Mr. Berkley’s allegations, taken

 as true, were enough to confer jurisdiction and state a claim.           ECF No. 33.

 Specifically, the Court determined that Mr. Berkley’s allegations that his

 investigation of the fraud and professed expertise in private equity were sufficient to

 find that the public disclosure bar did not apply on the face of the Complaint.2 Now

 that discovery is completed, Defendants move for summary judgment and

 Mr. Berkley moves for partial summary judgment.          Defendants raise the public

 disclosure bar again, arguing that discovery has not borne the fruit Mr. Berkley

 promised in opposing that bar at the motion to dismiss stage.3

 II.   STANDARD OF REVIEW

       A party is entitled to summary judgment if the movant shows there is “no

 genuine dispute as to any material fact and the movant is entitled to judgment as a

 matter of law.” Fed. R. Civ. P. 56. A party can show a genuine dispute by citing to




       2 At the time of the motion to dismiss, the parties mainly focused the Court on

 the Daily Beast article that discussed the appropriateness of other companies, not
 Defendants, filing PPP applications when they may not have met the SBA
 requirements. The information both parties invoke here comes from the Small
 Business Administration (“SBA”) PPP loan data, New Harbor’s website, press
 releases issued by New Harbor and republished by third-party news source websites,
 and a Daily Beast article.
        3 These motions also argue that there are no disputes of material fact—

 Mr. Berkley argues that the undisputed evidence shows that he has met the elements
 of his FCA claims and damages and Defendants counter that the undisputed evidence
 shows that he has not, or at the very least, argues that there are disputes particularly
 as to scienter, that a jury should decide.


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 materials in the record, including “depositions, documents, electronically stored

 information, affidavits or declarations, stipulations ... admissions, interrogatory

 answers, or other materials,” or by showing that the materials cited either do not

 establish a genuine dispute or are not supported by admissible evidence.             Id.

 Summary judgment is mandated against a party who, given adequate time for

 discovery, “fails to make a showing sufficient to establish the existence of an element

 essential to that party’s case ... on which that party will bear the burden of proof at

 trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A complete failure of proof

 of an essential element shows that there is “no genuine issue as to any material fact”

 because if one element fails, all other facts are rendered irrelevant; it entitles the

 moving party to “judgment as a matter of law” because, by definition, the nonmoving

 party cannot carry their burden at trial. Id. at 323.

 III.   DISCUSSION

        Because Defendants argue that the public disclosure bar should be applied

 here and an answer in the affirmative would deprive this Court of subject matter

 jurisdiction, the Court will address that argument first.

        The FCA contains qui tam provisions that encourage private citizens to come

 forward with claims of fraud on the government. “The FCA allows private persons,

 called relators, to bring qui tam actions on behalf of the United States against persons

 or entities who knowingly submit false claims to the federal government.” United

 States ex rel. Ondis v. City of Woonsocket, 587 F.3d 49, 53 (1st Cir. 2009) (citing 31

 U.S.C. § 3730(b)(1)). The United States can decide to prosecute the case, but if it




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 declines to do so, “the relator may pursue the action on its behalf.”         Id. (citing

 § 3730(b)(4)). “Either way, the relator is eligible to collect a portion of any damages

 awarded.” Id. (citing § 3730(d)).

       Because of this potential financial reward, the FCA contains conditions to limit

 or block a qui tam action “to walk a fine line between encouraging whistle-blowing

 and discouraging opportunistic behavior.” United States ex rel. Duxbury v. Ortho

 Biotech Prods., L.P., 719 F.3d 31, 33 (1st Cir. 2013) (citations omitted). The public

 disclosure bar is one such condition; the statute provides that such action should be

 dismissed “if substantially the same allegations or transactions” “were publicly

 disclosed in a Federal criminal, civil, or administrative hearing,”; “in a congressional,

 Government Accountability Office or other Federal report, hearing, audit, or

 investigation, or from the news media, unless the action is brought by the Attorney

 General or the person bringing the action is an original source of the information.”

 31 U.S.C. § 3730(e)(4)(A). The “bar is designed to foreclose qui tam actions in which

 a relator, instead of plowing new ground, attempts to free-ride by merely

 repastinating previously disclosed badges of fraud.” Ondis, 587 F.3d at 53.

       Public disclosure occurs when allegations of fraud are placed in the public

 domain. In analyzing whether this bar applies here, the Court must undertake a

 three-part inquiry. The Court asks: “(1) whether there has been a prior, public

 disclosure of fraud; (2) whether that prior disclosure of fraud emanated from a source

 specified in the statute’s public disclosure provision; and (3) whether the relator’s qui

 tam action is ‘based upon’ that prior disclosure of fraud.” United States ex rel. Poteet




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 v. Bahler Med., Inc., 619 F.3d 104, 109 (1st Cir. 2010). If the undisputed record

 evidence here militates three “yes” answers, then the public disclosure bar applies,

 and this Court does not have jurisdiction unless the relator is the “original source”

 under 31 U.S.C. § 3730(e)(4)(B). Id.4

       A.     Disclosure

       Defendants argue that the essential elements of Mr. Berkley’s claims–that 1)

 each PPP Recipient applied for a PPP loan and certified their applications, 2) New

 Harbor invested in those businesses, making them affiliates as defined in the CARES

 Act, and 3) the information that New Harbor and the PPP Recipients had a certain

 number of employees and New Harbor’s funds held assets under management such

 that they could not meet the affiliation and necessity requirements could be found in

 publicly available sources. Mr. Berkley argues that Defendants have not identified a

 single source of alleged public disclosure of the fraud.

        To be a relevant disclosure, it “must present either a direct allegation of fraud,

 or else both a misrepresented state of facts and a true state of facts such that the

 recipient may infer fraud. The misrepresented facts and the true facts may also

 appear in several separate disclosures that combine to create an inference of fraud.”

 United States ex rel. Conrad v. Abbott Lab’ys, Inc., Civil Action No. 02-11738-RWZ,

 2013 WL 682740, at *3 (D. Mass. Feb. 25, 2013) (citing Poteet, 619 F.3d at 110, 110

 n. 6). In this case, Defendants argue that the misrepresented state of facts (that the




       4 Mr. Berkley does not allege or argue that he qualifies as an “original source”

 of the fraud so the Court will not elaborate on the applicability of that exception.


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 PPP Recipients falsely certified compliance with the size and necessity requirements

 and falsely submitted claims for loan forgiveness) and the true facts (detailed

 corporate information about each PPP Recipient such as the number of employees

 and its relationship with New Harbor) were all publicly available in the identified

 sources.

        To start, it is undisputed that, before he set out to file his case, Mr. Berkley

 had no documents from the PPP Recipients related to the loans, never spoke with any

 of their employees about the applications or any potential fraudulent scheme, did not

 work for any of the Defendants, and had no private information about New Harbor’s

 assets under management or fee structure. Moreover, the essential elements of his

 FCA claim were all publicly available. Each PPP Recipient applied for a loan and

 completed the certifications. In July 2020, the Department of the Treasury published

 the PPP loan data and Mr. Berkley acknowledged that “[t]he fact that the three

 portfolio companies applied for PPP loans is something [he] learned from going to the

 [Treasury] website.” ECF No. 78 ¶ 202. The day after he learned this information,

 he emailed Mr. Roselli related to the rent dispute, noting that Ocean State took PPP

 money. As to the element of whether Defendants falsely certified that they met the

 size, affiliation, and necessity requirements, the PPP Recipients’ and New Harbor’s

 employee counts and assets were publicly disclosed on ZoomInfo web pages, which

 Mr. Berkley relied on in alleging fraud in his original complaint. See ECF No. 1 at 30-

 31.




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       As to New Harbor’s role, Mr. Berkley testified that the “fact that New Harbor

 had an investment [in] Ocean State. . . was publicly available in the news media at

 the time [he] filed this lawsuit.” ECF No. 78 ¶ 215. And documents produced during

 discovery show that it was publicly known that New Harbor invested in each PPP

 Recipient, making the companies affiliates. See id. ¶¶ 20, 67, 114. New Harbor’s

 assets were published in the Wall Street Journal and other news media sources

 published before Mr. Berkley filed his Complaint. Id. ¶ 212. And he confirmed that

 he saw those public sources, testifying that he “learned about” New Harbor’s “assets

 under management” by “going online” where it was “publicly available.” Id. ¶ 213.

       The contradiction of PPP Recipients’ certifications of size, necessity, and

 affiliation in their publicly available PPP applications and the true facts of their

 company data and affiliations with private equity and New Harbor, was publicly

 available such that it could “lead to a plausible inference of fraud.” Ondis, 587 F.3d

 at 54. Even if “a person studying all of these sources would likely need substantial

 expertise in the field in order to find the alleged discrepancy[,] [] the only question is

 whether the material facts exposing the alleged fraud are already in the public

 domain, not whether they are difficult to recognize.” Conrad, 2013 WL 682740, at *4

 (citing Ondis, 587 F.3d at 59–60). Thus, the Court finds that the first element of the

 public disclosure bar has been met.

       B.     Source

       Statutorily articulated sources are (1) “criminal, civil, or administrative

 hearing[s],” (2) “congressional, administrative, or Government Accounting Office




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 report[s],   hearing[s],     audit[s],   or        investigation[s],”    or    (3)   “from

 the news media.” Poteet, 619 F.3d at 113 (quoting Graham Cnty. Soil & Water

 Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 285-86 (2010)).               The

 information both parties invoke here comes from the Small Business Administration

 (“SBA”) PPP loan data, New Harbor’s website, New Harbor’s press releases issued

 and then republished by third-party news source websites, and a Daily Beast article.

 The Court determined on Defendants’ motion to dismiss that these are all appropriate

 statutory sources, so this element is satisfied.

        C.    Basis

        The Court’s decision declining to dismiss this case based on the public

 disclosure bar was rooted in Mr. Berkley’s allegations that his investigation and

 expertise in private equity formed the basis for his claim, not information in the

 public. United States ex rel. Berkley v. Ocean State, LLC, C.A. No. 20-cv-538-JJM-

 PAS, 2023 WL 3203641, at *5 (D.R.I. May 2, 2023). The Court relied on his assertions

 that he conducted his own research leading him to draw inferences of fraud that the

 government could not see and of which it was not put on notice. He alleged that he

 detected “Defendants’ alleged role in defrauding the government through his own

 investigation and knowledge” and “that he was only able to discern the fraud through

 his ‘experience and knowledge of the private equity fund model and compensation

 structure, coupled with his investigation and analysis into New Harbor Capital and

 its portfolio companies.’” Id. (quoting ECF No. 28 ¶ 160.) Mr. Berkley now argues




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 that he discovered the fraud through a “mosaic theory”5 where he gathered seemingly

 innocuous pieces of public and nonpublic information from various sources and

 formed fraud allegations that were materially advanced through his independent

 analysis, application of industry knowledge, and direct communications with

 Mr. Roselli and other insiders. Discovery has not borne this out.

       An action is considered “based upon” previous public disclosures if “the

 relator’s allegations are substantially similar to allegations or transactions already

 in the public domain at the time he brings his qui tam action.” Ondis, 587 F.3d at 58.

 A complaint “is based on public disclosures for FCA purposes if the facts publicly

 available to [relator] could have been synthesized to form the same inference” as

 alleged in the complaint. United States ex rel. Solomon v. Lockheed Martin Corp.,

 878 F.3d 139, 145 (5th Cir. 2017) (citing United States ex rel. Jamison v. McKesson

 Corp., 649 F.3d 322, 331 (5th Cir. 2011)).

       The undisputed facts in the record show that Mr. Berkley’s fraud claims

 against these Defendants are substantially like transactions appearing in the public




       5 There is some debate over whether either party is attempting to apply the

 original source exception standard here when Mr. Berkley asserts that he has not
 invoked that exception. The Court believes, based on its reading of the briefs and
 case law, that confusion results from Mr. Berkley’s mosaic theory because he is
 essentially arguing that he cobbled together the fraud from public sources that he
 investigated, along with his expertise. This is irrelevant because Mr. Berkley does
 not claim he is an original source but the Court notes that the First Circuit has
 declined to “join other circuits in holding that discovery and synthesis of information
 from different public sources during the course of an independent investigation can
 result in original sourcing[.]” U.S. ex rel. Est. of Cunningham v. Millennium Lab’ys
 of Cal., Inc., 713 F.3d 662, 674–75 (1st Cir. 2013).


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 domain.    The public disclosures of PPP Recipients’ applications revealed the

 information underlying the fraudulent scheme Mr. Berkley alleged, including

 employee counts, affiliation with a private equity firm, New Harbor’s assets under

 management, and other public documents and websites confirming their eligibility

 (or ineligibility) for PPP loans and forgiveness. He admitted that he found out that

 the PPP Recipients applied for PPP loans through the Department of the Treasury’s

 website and researched New Harbor’s assets under management, including its

 investments in the PPP Recipients by visiting public websites. ECF No. 78 ¶¶ 199-

 218.

        And as for his assertion that his Complaint was based on his experience with

 private equity, he conceded that his experience only informed his “allegation that

 New Harbor could have made cash available to the portfolio companies.” ECF No. 78

 ¶ 230. But he also noted that to conclude this, he relied on two publicly disclosed

 facts: that New Harbor had assets and an equity investment in each PPP Recipient.

 Mr. Berkley also admitted that private equity structure and “[t]he fact that a private

 equity sponsor can inject liquidity, can provide cash … to its portfolio companies” is

 “general industry knowledge.” ECF No. 78 ¶¶ 231-234.

        As to whether his investigation led to discovery of the fraud, Mr. Berkley said

 in his Complaint that he communicated with numerous Ocean State employees but

 admitted during discovery that his only contact with six out of eleven individuals he

 named as sources was that they were copied on the email that Mr. Roselli sent to all

 Ocean State’s landlords about its inability to make rent. Id. ¶ 226. For example,




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 Ocean State physician Dr. Rocco Andreozzi testified that he never heard of

 Mr. Berkley. Id. ¶ 229. Of the others he said he spoke with, he testified that he did

 not know if any of them had any involvement with Ocean State’s PPP application.

 That was confirmed by Ocean State physician Dr. Scott Wilson and two other Ocean

 State employees, Dina D’Alfonso and Julie D’Alesandro, who testified that they did

 not share any information with him. Id. ¶¶ 221, 225. Thus, it is undisputed that

 Mr. Berkley’s investigation aimed at getting insider information from Ocean State

 employees bore no fruit.

        “To achieve its real purpose, the FCA should reward only those who come

 forward with original, direct, and independent knowledge of a fraud.” Ondis, 587

 F.3d at 58 (citations omitted). “Under that interpretation, the FCA’s real purpose is

 to reward whistleblowers with first-hand knowledge, not hard work and expertise.”

 Conrad, 2013 WL 682740, at *7. Mr. Berkley’s mosaic-building fraud claims created

 using tiles gathered from the public domain does not adhere to Congress’ intent in

 passing the FCA. Therefore, the third and final element of the public disclosure

 inquiry is satisfied.

 IV.    CONCLUSION

        The Court concludes that, on the full summary judgment record, the three

 aspects of the public disclosure inquiry are met here. The essential facts giving rise

 to an inference of fraud were publicly disclosed, the disclosure was through qualified

 sources according to the statute, and Mr. Berkley’s FCA action is based on those

 public disclosures. There was no dispute that Mr. Berkley was not an original source




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 under the public disclosure provision.        Thus, the Court lacks subject matter

 jurisdiction, see Poteet, 619 F.3d at 109–110; Ondis, 587 F.3d at 53, and can go no

 further.

       The Court GRANTS Defendants’ Motion for Summary Judgment. ECF No. 75.

 The Court DENIES Mr. Berkley’s Motion for Partial Summary Judgment. ECF

 No. 64.



 IT IS SO ORDERED.



 John J. McConnell, Jr.

 _________________________________
 John J. McConnell, Jr.
 Chief Judge
 United States District Court


 September 26, 2025




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