Recent cases have highlighted differing approaches as to how to apply the False Claims Act’s public disclosure bar in light of its amendment in 2010, and leave open several questions as to whether the amended bar will be applied in a given case and how that affects defense strategy. The FCA’s ‘‘public disclosure bar’’ precludes whistle blowers from bringing allegations that have already been made public unless they are an ‘‘original source.’’ The bar was substantially amended in March 2010, narrowing the circumstances in which it applies, while also appearing to grant the government the power to ‘‘veto’’ the bar’s application in a case altogether. But where a complaint filed today alleges conduct that took place in 2009 or earlier, should the old version of the bar apply? Because the amendments were not expressly made retroactive by Congress, it would appear that a court would need to analyze whether applying the amended bar to conduct predating its enactment would have an impermissible retrospective effect.
