United States of America, Ex Rel. v. Sunovion Pharmaceuticals Inc., et al

Filing 42

ORDER: Relators' Motion for Voluntary Dismissal Without Prejudice Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) and Request for Preservation of Seal (Doc. # 36 ) is GRANTED IN PART AND DENIED IN PART. This case is DISMISSED WIT HOUT PREJUDICE. The Clerk is directed to unseal Relators' Motion to Dismiss (Doc. # 36 ), the Government's Response (Doc. # 39 ), and this Order. The Clerk shall close the case. Signed by Judge Virginia M. Hernandez Covington on 10/17/2016. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA, ET AL.,
Plaintiffs,
v.

Case No. 8:14-cv-1319-T-33MAP

SUNOVION
ET AL.,

PHARMACEUTICALS,

INC.,

Defendants.
________________________________/
ORDER
This matter is before the Court pursuant to Relators’
Motion for Voluntary Dismissal Without Prejudice Pursuant to
Federal Rule of Civil Procedure 41(a)(1)(A)(i) and Request for
Preservation of Seal (Doc. # 36), which was filed on September
12, 2016. The United States filed its Notice of Consent to
Dismissal and Opposition to Relators’ Motion to Maintain Seal
(Doc. # 39) on September 26, 2016.

For the reasons that

follow, the Court dismisses the case without prejudice, but
declines to maintain the seal of the Complaint and other case
documents.
I.

Background Discussion
On September 5, 2013, Relators Jason Ferneau and Lisa

Fuoco filed a qui tam Complaint on behalf of the Federal
Government and various states alleging that Defendant Sunovion
Pharmaceuticals, Inc. made unlawful kickback payments to Linde
Healthcare

employees

to

promote

the

drug

Brovana.

The

Complaint was filed in the Southern District of Florida, but

was transferred to the Middle District of Florida pursuant to
28 U.S.C. § 1404(a) on June 2, 2014. (Doc. # 12).

After

conducting an independent investigation, the United States
notified the Court on September 6, 2016, that it declined to
intervene in the action. (Doc. # 35).
On September 12, 2016, the Relators filed a Motion
requesting dismissal of the case without prejudice and also
requesting that the case remain under seal. (Doc. # 36).
Therein, the Relators remarked that “the Assistant United
States Attorney in charge of this case has informed Relators’
counsel that the United States consents to this case being
dismissed without prejudice but will file a separate consent
for dismissal as they have a differing view on the matter of
the seal.” (Id. at 1-2).

Thereafter, on September 26, 2016,

the Government filed its submission explaining that it does
not object to the dismissal of the action without prejudice,
but that it did object to maintaining an infinite seal of the
case.
II.

Analysis
To protect the Government’s investigation, the False

Claims Act requires that qui tam lawsuits be filed under seal.
31 U.S.C. § 3730(b)(2). The seal, however, has a definite and
limited

purpose,

investigative

which

process.

is

to

The

protect

seal

the

exists

Government’s

“to

allow

the

government an adequate opportunity to fully evaluate the
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private enforcement suit and to determine . . . whether it is
in the Government’s interest to intervene and take over the
civil action.” S. Rep. No. 345, 99th Cong., 2d Sess. (S. Rep.)
at 24 (1986), reprinted in 1986 U.S. Code Cong. & Admin. News
5266, 5289.

In the absence of a privileged trade secret or a

matter of national security being discussed in a qui tam
complaint, qui tam complaints should be automatically unsealed
when the Government declines to intervene. However, documents
filed by the Government that may reveal its process of
investigating qui tam cases, such as requests for extensions
of time to intervene, will remain under seal indefinitely.
“The government also typically requests that its extension
motions and other similar documents remain under seal, even if
it elects not to intervene in the case, to protect its
investigative files and sources.” (Doc. # 39 at 7).
Here, the Court has already entered an Order unsealing
the Complaint as well as the Government’s Notice that it
elected not to intervene. (Doc. # 38).

The Court accordingly

determines that it is appropriate to dismiss this case without
prejudice.

The Government requests that all documents filed

after the “unsealing Order” be filed on the public record.
(Doc. # 39 at 6). The Court determines that it is appropriate
to unseal the Relators’ Motion to Dismiss (Doc. # 36), the
Government’s Response (Doc. # 39), and the present Order.
Accordingly, it is
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ORDERED, ADJUDGED, and DECREED:
1.

Relators’

Motion

for

Voluntary

Dismissal

Without

Prejudice Pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i) and Request for Preservation of Seal (Doc.
# 36) is GRANTED IN PART AND DENIED IN PART.
2.

This case is DISMISSED WITHOUT PREJUDICE.

3.

The Clerk is directed to unseal Relators’ Motion to
Dismiss (Doc. # 36), the Government’s Response (Doc. #
39), and this Order.

4.

The Clerk shall close the case.
DONE and ORDERED in Chambers, in Tampa, Florida, this

17th day of October, 2016.

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