139 Nev., Advance Opinion HO
IN THE SUPREME COURT OF THE STATE OF NEVADA
ORBITZ WORLDWIDE, LLC; ORBITZ No. 85111 LLC; ORBITZ INC.; TRAVELSCAPE LLC; TRAVELOCITY INC.; CHEAP TICKETS INC.; EXPEDIA INC.; EXPEDIA GLOBAL LLC; HOTELS.COM LP; HOTWIRE INC.; BOOKING HOLDINGS INC.; PRICELINE.COM LLC; TRAVELWEB LLC; TRAVELNOW.COM INC.; AGODA SEP 28 2023 INTERNATIONAL USA LLC; HOTEL ELI CLEM" URT TONIGHT INC.; AND HOTEL BY 1EF pEpure CLERK TONIGHT LLC, Petitioners, vs. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE MARK R. DENTON, DISTRICT JUDGE, Respondents, and THE STATE OF NEVADA; MARK FIERRO; AND SIG ROGICH, Real Parties in Interest.
Original petition for a writ of mandamus or prohibition challenging a district court order denying a motion for summary judgment. Petition denied.
Pisanelli Bice, PLLC, and Todd L. Bice, Las Vegas; Ballard Spahr LLP and Joel E. Tasca and David E. Chavez, Las Vegas, for Petitioners Agoda International USA LLC, Booking Holdings Inc., Cheap Tickets Inc., Expedia Global LLC, Expedia Inc., Hotel Tonight Inc., Hotel Tonight LLC, Hotels.com LP, Hotwire Inc., Orbitz Inc., Orbitz LLC, SUPREME COURT OF NEVADA 23-3IY/7 101 1941A Orhitz Worldwide, LLC, Priceline.com LLC, Travelweb LLC, Travelnow.corn Inc., Travelocity Inc., and Travelscape LLC.
Bradley Arant Boult Cummings, LLP, and Anne Marie Seibel and Tiffany J. deGruy, Birmingham, Alabama, for Petitioners Agoda International USA LLC, Booking Holdings Inc., Priceline.com LLC, and Travel Web LLC.
McDermott, Will & Emery LLP and Catherine A. Battin and Jon Dean, Chicago, Illinois, for Petitioners Hotel Tonight Inc. and Hotel Tonight LLC.
Morgan, Lewis & Bockius LLP and Douglas W. Baruch and Elizabeth B. Herrington, Washington, D.C., for Petitioners Cheap Tickets Inc., Expedia Global LLC, Expedia Inc., Hotels.com LP, Hotwire Inc., Orbitz Inc., Orbitz LLC, Orbitz Worldwide, LLC, Travelnow.coin Inc., Travelocity Inc., and Travelscape LLC.
Aaron D. Ford, Attorney . General, and David J. Pope, Senior Deputy .Attorney General, Carson City, for Real Party in interest . the State of Nevada.
Clark Hill PLLC and Dominic P. Gentile, Michael Vincent Cristalli, and Mark S. Dzarnoski, Las Vegas, for Real Parties in Interest Mark Fierro and Sig Rogich.
BEFORE THE SUPREME COURT, EN BANC.1
'The Honorable Linda Marie Bell, Justice, recused herself and did not participate in the decision 'of this matter. SUPREME COURT OF NEVADA
2 (0) I947A • OPINION -By the Court, CADISH, J.: In this writ proceeding, we consider an issue of first impression regarding NRS 357.080(3)(b), which prevents a private plaintiff -from maintaining an action u.nder the Nevada False Claims Act (NFCA) i.f the action is based on the same allegations or .transactions that are the subject of a civil action to which- the State or a political subdivision is already a party. Specifically, we address whether NRS 357.080(3)(b) requires dismissal of a private NFCA action brought on behalf of the State, where a county brings a subsequent suit on its own behalf against-the. same parties based on the same allegations or transactions as the private aCtion to establish liability. We conclude that NRS 357.080(3)(b) does not contain a sequencing requirement,' and thus when applicable this statute requires dismi.ssal of the private NFCA actjon even if the civil action on. behalf Of th.e State or a political subdivision was filed aer the private action. We further conclude that when a civil action has been brought by or or behalf of a state governmental entity, NRS 357.080(3)(b) presents no bar to .a separate private action on behalf of a different 'governmental entitÿ, even- where the two suits involve the same allegation's or transactions. -ApplYing this interpretation' to the instant case, we deny the request for writ relief because, even assuming' the private and goernniental actions here involve the same allegations or tranSactions, the two actions are brought on behalf t.wo separate• governmental entities. Petitioners haVe thus failed :to demonStrate that the law requires the district court to .dismiSs thiS priViate action such that writ relief is warranted here. FACTS AND PROCEDURAL HISTORY Real parties in interest Mark Fierro and Sig. Rogich
(collectively, relators) commenced.a private action on behalf of real party in interest the State of Nevada against petitioners, all of whom. are online travel companies (collectively, OTCs). Relators asserted a cause of z:iction under the NFCA, alleging that OTCs knowingly avoided obligations to pay transient-lodging taxes2 mandated by the Clark County Code and state law by engaging in a scheme to collect the tax from their customers based on a retail room rate but remit the tax to the county and State based en a lower, discounted rOom rate negotiated between OTCs and hotels.3 In other words, relators alleged that OTCs negotiated with hotels to rent a room at a certain rate, called the wholesale rate; OTCs then marked up the. price, called th.e retail rate, to customers. Relators al.lege that OTCs then calculated their transient-lodging tax obligation according to the wholesale rate, yet they
collected from customers the transient-lod.ging tax Obligation according to the retail rate and pocketed the difference. Following the procedure set forth in NRS 357.110, the. Attorney General declined 'to intervene and permitted relators' action te proceed..
2 NRS 244.3352(1) mandates that counties impose transient-lodging taxes. Transient-lodging taxes are based on the gross receipts received. by transient-]odging establish.ments, as that term is defined, :from their occupants. Id. These taxes are collected by the counties and apportioned between the counties and the State under applicable law. NRS 244.3354.
3As we explain below, this type of private lawsu.it, on behalf of an allegedly defrauded government en.tity, is sometimes referred to as a qui- tam case. SUPREME COURT OF
NEVADA
CO) I947A 4 Over a year later, Clark County filed its own lawsuit against the same OTCs named in this qui-tam lawsuit, which OTCs removed to federal court. Clark County's lawsuit included several claims, -all based on allegations that OTCs knowingly avoided payment of .transient-lodging taxes owed to Clark County under county and state law by engaging in a scheme to collect a transient-lodging tax from its customers based on "the full retail price" charged to those customers but remit the same transient- lodging tax to Clark County based on "the • disconnted wholesale price" negotiated between OTCs and hotels. Following the commencement of Clark County's lawsuit, OTes moved for sumrhary judgment on the NFCA claim in this private action. They argued that the government-action bar un.der NRS 357.080(3)(b) precluded the action from proceedini; becaUse, as relators cOnceded, the allegations and transactions that were the subject of the private .action were now th.e subject of a separate civil action cornmenced by Clark Connty. Relators countered that the government-acti.on bar did not preclude relators' action on behalf of the State, as the bar only applied to a private action that involved the same governmental entity and th.e same theories of liability as the separate governmental entity's-action. During a hearing on the motion, the district court raised whether NRS 357.080(3)(b)'s language creates a sequencing requirement, such that the statute precludes a private suit that involves* the sank: allegations or transactions as a goVernmentalentity's suit only if the private suit was instituted after the governinental entity's snit. Ultimateiy, the district court denied summary judginent on. this baSis. It-found that Clark County's action was based on. • the same underlying allegations or transactions that are the subjed of relators? private -actiOn. Hiiwever. it
SUPREME COURT OF NEVADA
ru7A 5 reasoned th.at the "already" la.ng,uage in NRS 357.080(3)(19 "contemplates first in time." .A.ecordingly, the district court concluded that the government-action bar did not 9.pply here because Clark County did not bring its action until after commencement of the private action; thus, it was "not 'already a party" to its own action for purposes of the section. Subsequently, the district court granted. the relators' motion for leave to amend pursuant to a joint stipulation in which OTCs reserved the right to object. to •-the • amended 'complaint under NRS 357.080(3)(b). Relators' amendment sought to clarify • that the •• original comPlaint encchipassed recovery of transient-lodging taxes due tothe State u.nder the ordinances of each county in 'which theY were imposed; rather than only Clark County. Thus, in the amended complaint, relators again asserted t.heir 1\TFCA elaim on behalf of the State and included neW allegationS that UrCs had knowingly and improperly deprived the State of taxes owed to it pursuant. to the codeS of Clark, Washoe, Douglas, Lyon, and 13.ye- Counties, ;as weii as state law,- by remitting their transient-lodging taxes based on.the loWer negotiated room rate, rather than the higher retaiIroorn rate. • BefOre relators filed their amended complai.nt but after the joint stipulation., OTCs moved for reconSideration of the order den.ying shramary jud.girient on the ground that the diStriCt Court's; in(ernretation of -MIS 357.0809)(b) conflicted with itS plain:language. TheY contended that the applicatiorrof the statute depehd.ed Merely on the existence of-the two suits, regardless • of sequence. OTCs alio 'argued • that relators'. amended allegations extending the alleged tak-avoidance scheme to Other Nevada counties did not sufficiently differentiate the prilia.te‘ shit from the Clark Couhty suit- and, thus, did. not overcome the gOvernment-action bk.e. OTC's' vieW, the purported failure te pay th'e SUPREME COURT OF NEVADA
(O I17A regard.less of where the tax wae, levied, relied on the same statewide statutory sources and the same alleged statewide unlawful practices. OTCs also argued that, regardless of the amendment, the bar continued to apply with re.spect to the alleged violations. of Clark County's ordinances because those allegations overlapped the allegations in the Clark County action and
showed that the two suits rested on the same allegations or transactions. Objecting to reconsideration, relators argued that the amen.ded complaint, in superseding the original,. precluded reconsid.eration -as to OTCs' attacks on the original complaint. RelatorS also' contended that the amended complaint's inclusion of new allegations regarding transient- lodging taxes in multiple counties differentiated their suit from the Clark County suit and overcame the government-action bar. Following a hearing, the district court denied reconsideration without articulating a rationale. This writ petition followed. DISCUSSION We elect to entertain the petition for writ relief A writ of mandamus. is available to correct clear error or .an arbitrary or capricious exercise of discretion when there is ne..other plain, speedy, and adequate legal remedy.4 Inn Game Thch., Inc. v.. Second
Judicial .Dist. Court, 124 Nev. 193, 197, 179 P.3d 556. 558 (2008); see State u. Eighth Judicial Dist.. Court (Anzalone), 118 Nev. 140, 146, 42 P.3c1 233,
4Although OTCs alternatively seek a. writ of prohibition, to the extent that the government-action bar implicateS a challenge to the district court's jurisdiction., we conclude that prohibition relief is not a.ppronriate ifere, consistent with our analysis of mandamus relief. See .Goicoechea V. .firourth judicial Dist. Court, 96 Nev. 287; 289, 607. P. 2d 1140, 1141 (1980) (holding that a writ of prohibition "will not issue if the courf sought to be restrained had jurisdiction to hear and determine the matter under consid.eration."). SUPREME COURT OF NEVADA
7 237 (2002) (observing that writ-of-mandamus relief "is available 'to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station,' or to control manifest abuse of discretion" (quoting NRS 34.160)). "Writ relief is an .extraordinary remed.y that . . only issue[s] at the 'discretion of this court." Anzalone, 118 Nev. at 146, 42 P.3d at 237. "[B]ecause an appeal from the final judgment typically constitutes an adequate and speedy legal remedy, we generally decline to consider writ 'petitions that challenge interlecutory district court orders denying motions to dismiss" or for summary judgment. lilt? Game _Tech., 124 Nev. at 197, 179 P.3d at 558. Notwithstanding our general policy, however, we have elected to exercise our discretion and entertain a writ petition in situations where "an important issue of law needs clarification and considerations of sound judicial economy and ad.ministration militate in.favor of [considering the petition]." Id. at 197-98, 179 P.3c1 at 559. This petition raises purely legal questions regarding the effect of NRS 357.080(3)(b) where the government entity's suit was filed after the private action and the two at-issue lawsuits involve tWo d.istinct governmental entities. Additionally, the issues of first impression raised by this petition are of statewide importance. Because the NFCA. authorizes private parties to recover .fraudulently obtained government funds and return those funds to the public fisc, any interpretation... of NRS 357.080(3)(b) touches on the private enforcement of a. governmental entity's owed claims and a governmental entity's control over the manner in .-vvhich private plaintiffs litigate falSe claims. Moreover, the interpretation of: NRS 357.080(3)(b) at the early stages of litigatien furthers judicial economy, as the - statute presents a total bar .;(3 litigation in certain. Situations:. Accordingly, we elect to exercise our discretion and- entertain the writ
8 petition to answer whether NRS 357.080(3)(h) barE., a private suit on behalf of a, governmental entity where a different governmental entity so.bsequently sues the same parties based on the same allegations or • transactions as the private suit.5 The NFCA's government-action bar Modeled after the 1986 amen.dments to its 17ederal counterpart, the. NFCA aims "to expose and combat attempted fraud against the government."' Ina Game Thch., 124 Nev. at 198;. 179:P.3d .at 559; see also NRS 357.040(1)-.(enumerating "acts" for which "aperson." may beThable to the- State or a political subdivision"). In so doing,. the NIT.A allows- the Attorney General or the Attorney General's designee to bring a.n action thereunder against any "person" who commits a prohibited "a.ct" against the State or a political subdivision of the:State and recolier 'monetary darnages, including treble damages. See NRS 357.040(1)(a)-(i), (2) (listing "acts" for which civil liability exists and available dainages) NRS .357.070(1)42) (permitting Attorney General; or district or city attorney by designation, to b•ring cause of action under the NMA). At the .sarne time, the NFCA • authorizes so.-•Called qui-tan :. 4,-.tions by which "a private plaintiff . . : bring[s] an. action ; on his or her ovv-ri accOunt and that dale State Or a. political subdi-,yision ; or both th.e State and a politica]. subdivision," for violations thereunder. See NRS 357.080(1):
• 'We are not persuaded by relators' argument that this writ petition is ;moot. Regardless Of ',vhether the amended complaint superseded the na.! complaint, the •amended complaint did not F.; ubstaiiti, ly alter the interpret,ative . issue concerning, NRS 357.080(3)(h) presented . in tIns petitien. Thus, the amended cornplaint neither •J!ividers ti tegaì issite .:1-.):3tract nor. prevents us frOm granting -effectual relief to-the 'prevailing party.
9 see generally United States v. Kitsap Physicians Sem, 314 F.3d 995, 997 n.1 (9th Cir. 2002) ("`Qui. tam is shorthand for [a] Latin phrase . . . . In practice the phrase means 'an action. under a statute that allows a private person. to sue for a penalty,. part of which the government or• some• specified public institution will receive.'" (citations and italicization omitted)). Once
brought, "no person other than the Attorney General or the Attornu General's designee may intervene or bring a related action pursuant to [the NFCA] based on the facts underlying the first [private] action.."G' NRS 357.080(2); see generally Grynberg eX rel. United States v: Exxon. Co:, USA (.1h re Nat. Gas Royalties Qui Tarn Litig.), 566 F.3d 956, 961(l0th Cir: 2009) (describing the analogous federal provision as the "first-to-file bar," which. `-functions both to eliminate parasitic plaintiffs who piggyback off the claims of a prior relator, and to encourage legitimate relators to file q-uicklY- by protecting the spoils of the first to bring a. claim"). NRS 357.080(3) nevertheless precludes:certain qui-tam actions. The at-issue subsection, known as the government-action bar, limits private actions as follows: faJn action may not be maintained by a private •• plaintiff pursuant to this chapter . . . [W. the action . is based upon allegations or transactions that are the subject •of a civil action or an administrative
Gif the Attorney General or the Attorney General's designee elects to intervene in the qui-tam acticn, then the private plaintiff muat effectively cede control of the litigation over to the Attorney General or the Attorney General's designee. See NRS 35.7.110(3). But if, as occurred here, the appropriate official declines to intorvene, "the private plaintiff -niay proceed with the action." NRS 357.1.1.0(2). The State did not proyid.e any briefing in this writ proceeding, presumably because the Attorney General previously declined to intervene in the action. SUPREME COURT OF NEVADA
10) 1947A 10 proceeding for a monetary penalty to which the State or political subdivision is already a party. NRS 357.080(3)(b); see also United States ex. rel. Bennett v. Biotronik, 876 F.3d 1011, 1014 (9th Cir. 2017) (referring. to "the 'government-action bar"' in the NFCA's counterpart under the federal False Claims Act). We have not yet had the occasion to interpret the scope of NRS 357.080(3)(b) in an analogous situation, and thus, we have made only general remarks regarding the provision. See, Game Tech., Inc. v. Second Judicial Dist. Court, 122 Nev. 132, 139, 127 P.3d 1088,1094 (2006) (stating, without interpreting the statute, that Igjenerallv, a false claims action may not be maintained if administrative or court proceedings involving the same underlying facts and allegations were previously instigated"). OTC's argue that the distriet court clearly erred in interpreting the unambiguous language of NRS 357.080(3)(b) as containing a 'sequencing requirement. They focus on t.he district court's interpretation. of Lhe %.v -ords "maintain" and "already," arguing the Legislature's decision to. substitute !mai.ntain" for the federal la.w's use of llring" as to a priVate plaintiff's action supports that the two terms are not synonymous. APnlying their interpretation, OTCs argue that NRS 357.030(3)(b) bars the private action here, even though the Ciark County a.ction came after the private action. Relators counter that OTCs' interpretation .of NRS 357.080(3)(b) as purportedly requiring dismissal of. a private 1.tawsuit behalf of the State because a • separate political subdivision filed a subsequent lawsuit on its own behalf premised on the same allegationS .or transactions conflicts with the plain. language of the statute, 'Which distinguishes between "the State" an.d "political subdivisions" of the Stai-,e. They reason that because the two at-issue suits involve different state
(0) 1947A 11 gDvenamenW entities, Nits 357 vm_143) does not 11 re:Aude rekitors' private action from proceeding. The application of NRS 357.080(3)(b) to the undisputed facts is a question of statutory interpretation, which we review de novo. In. re Resort at Surnmerlin Litig., 122 Nev. 177, 182, 127 P.3d 1076, 1079 (2006). We enforce the plain meaning of an unambiguous statute, see City of Reno v. Y.!.I.rbide, 135 Nev. 113, 115-16., 440 P.3d 32, 35 (2019), and strive to interpret sectien.s "in harMony -With the statute . as a•-whole,"• Brandi Banking & Tr: Co. V. Windh . aven & Tollway, LLC, 131. Nev. 1_55, 158, 347 P.3d 1038, 1040 '(2.015). In deter:Mining the meanin.g of a statUte, We: give undefined words in the Statute their "plain and ordinary m.eaning.". la.re Resort at Surnmerlin Litig., 122 Nev. at 182, 127 P.3d at 1079. Further, when a..statute haS been mOdeled 'after a federal statute, we consider intez'praation of• the federal • statute as "'helpful" insig;:it for our ir;terpretation of the corresponding state. laW. See int?, Game. Tech,,' 122 at :150, i27' P.3d - 1101 . We resort to external Sources or rnles•4 :Lutory conStruction only in the event that ambiguity, tirlanguage that gives rise to More than one "reasonable" interpretation, exists in—the statute. See Univ.' & Cmty. Coll. Sys. Of Nev. v. Nevadans for SOund G60,, 120 Nev.-712, 731, 100 P.3d .179,. 193 (004). •
NRS 357.080(3)(b) may apply even where the qui-tarn action precedc, • the State's .or political subdivision's action The statutory-interpretation .dispute . here concerns li,ow the words ."maintain" and 'already" relate to each other. While neither word is defined within. the MICA, under the COM.Tlion definition, 'niaintain" means to 'continue (somethingr Maintain, Black's Law Dictionary 1142 (1,1th ea. 2019); see also American 1.-leritae Dictionary 1058 (5th ed. 2011) (defining
. .12 maintain. as "[t]o keep up or carry on; continue"). 7 We have, in interpreting other statutes, noted a difference between the words "maintain" and "bring." See, e.g., Madera .v. State Indus. .Ins. Sys., 114 Nev. 253, 258-59, 956.P.2d 117, 120-21 (1998); Nat'l Mines Co. .v. Sixth. judicial Dist. Court, 34 Nev. 67, 77-78, 116 P. 996, 1000 (1911). In National Mines Co., we discussed a statute that conferred the right to "institute and maintain" an action. 34 Nev. at 77-78, 116 P. at 1000. Interpreting this language, we reasoned as follows:" The word "maintain," as usedlrequently in statutes - in reference to action.s, comprehends the institution as well as the support of the action., and the statutes of this state contain In.any instances where it is used in this broader sense. It is used• in other instances to express a nleaning corresponding to its more restricted and more proper definition, . . . where [the term] [is] construed not to . comprehend the institution of an action, but merely the support th.ereof. In [the statute] the two words are used together, "institute and maintain"; and hence both are u.sed in their restricted sense. Id. (citations omitted). Likewise; in Madera, we considered a I-:7tatute that used the terms "'brought' or 'maintained,' and we acknowledged that these terms sometimes convey similar meanings. 114 Nev. at 258, 956 P.2d at 120-21. Nevertheless, we concluded that the statute's uSe of "maintain extended that statute "topending matters,' not just future matters. See id. at 258-59, 956 P.2d at 120-21. In so concluding, we reasoned. that the Legislature's use of "maintain" alongside "brought" evidenced. an intent to
7The definition of"maintain" in the versions of diCtionaries at the time of the statute's passage in 1999 are identical to the definitions in. the current edition.s. See Maintain., Black's Law Dictionary 965 (7th ed. 1999); American Heritage DictiOnary 1084 "(3d ed. 1996). SUPREME COURT OF N EVADA
«., 1947A .F42.11. 13 apply different meanings to the terms; such that the word "maintain" meant to continue or uphold an action, rather than to commence or institute it. See id. at 259, 956 P.2d at 121. Like the statute in Madera, NRS 357.080 uses the terms "maintain" and "bring" at different points, indicating the Legislature's intent to distinguish the two terms rather than collapse them. See generally 2A Norman J. Singer & Shambie Singer, Sutherland Statutes & Statutory Construction § 46.6 (7th ed.• 2007) [hereinafter- Suthertand] ("Different words used in the same, or a similar, statute are assigned different meanings whenever possible."). Nor does the ordinary meaning of "already" preclude giving independent meaning to "maintain," as the former. term may, but does not always, convey succession. See. American: Heritage Dictionary 53 (5th ed. 2011) (defining "already" an adverb, as "Thrly'this or a specified time," and noting tb.at it• functions as "an intensive" at times).8 . Moreover, it can simply apply to the time at which the motion to dismiSs is
made, at which point such a civil action is "already" pending. Although the Legislature patterned the NFCA after federal legislation, it departed from the federal counterpart in Substitting "maintain" for "bring." Compare 31 § 3730(e)(3) ("In no ex:Tentmay- a person bring an action under [the act] . : . which is haSed upon al]egations or transactions which are the subject of a civil suit or an.administrative civil. money penaltY proceeding in which. the, GovernMent is already a partY.'. (empha.sis added)), with NRS 357.080(3)(b) •- ("Ain action may not be
8The 1992 edition of American, Heritage Dictionary provides it definition of "already" as "tidy this or a specified time; before," while also noting that "already" can be "[u]sed as an intensive." See American Her4age actionary 54 (3d ed. 1996). Blaclz's Law Dictionary does not kfine "already." SUPREME COURT OF NEVADA
1 ,)47A 14 maintained by a private plaintiff . . . [ijf the action is based upon allegations or transactions that are the subject of a civil a.ction . . . to which the State or political subdivision is already a party." (emphasis added)). Generally, "[w]hen the Legislature adopts a. statute substantially similar to a federal. statute, 'a presumption arises that the Negislature knew and intended to adopt the construction placed. on the federal statute by federal courts." Ina Ggme Tech., 122 Nev. at 153, 127 P.3d at 1103. Yet here, the Legislature rejected the federal FCA's sequeneing language and the caselaw's construction of that language in its use of "maintain" as opposed to "tiling:" C)r. 2B Sutherland, supra, at § 52:5 ("[W]hen a legislature Models a statute after a uniform. act., but does not adopt particular language, coUrts conclude the omission was 'deliberate,' or 'intentional,' and.• that the legiSlature rejected a Partieular policy Of the uniform. act."). • Accordingly, then, the • goyernment-actiiin bar in NRS 357080(3)(b) contains no sequencing requirement, andeit therefore may apply even where the qui-tam aCtion precedes the Si:kite's or *Aka]. subdivision's action," because it precludes not just the. bringing. of a private Snit but also the maintaining of one, conveying • the continued pursUit thereof. While the district court erred in determining that• NRS 357.080(3)(b) contains such a sequerycing•requirement, .an issue remain.s as to wh.ether the statute requires dismiSsa1 'Where the Private and gOvernment suits concern the interests of different goVernMent entities.
' 9We note, however, that pursuant to NRS 357.080(2), only the •
Attorney General or their designEtp may assert claims pursuant. •to the NFCA in a goVernment civil. action when it is filed after the qui-tam action. SUPREME COURT OF NEVADA
(0 . 1 ,)47A 15 NRS 357.080(3)(b) does not bar a qui-tarn action on behalf of one governmental entity where the separate civil action has been brought by or on behalf of a different governmental entity, even if the two suits involve the same allegations or transactions . Application of NRS 357.080(3)(b) requires comparison of two "actions": the first action is the cne brought by a Private.plaintiff under NRS 357.080(1), and the second action, i.e., "a civil action," refers to the one to which "the State or political subdivision is already a party." Importantly, a disjunctive is used in the latter clause. to describe the "civil . action,' signaling that the terms "the State" and "political subdivision" convey distinct meanings. See United States v. Harris,• 838 F.3d. 98, 105 (2d Cir. 2016) ("Established canons of statutory construction 'ordinarily • suggest that terms connected by a disjunctiVe be given separate meanings." '(quoting Reiter v. Sonotone Corp., 44.2 U.S. 330, 339 (1.979))).' in authorizing the first action' by a private plaintiff, the statute elseWhere .maintains the disjunctive when referring to "the State" and 'political subdivision.' • See NRS 357.080(1) (IA] private plaintiff may bring an action pursuant to thi.s chapter . . . on his or h.er own. account and that of the State or a. political subdivision, or both 'the State and a political subdivision.'" -(emptfases added)). Indeed, the NFCA confirms distinct meanings of"the State" and a "political subdivision," aS the latter term is nOt 'defined as coextensive .with the former term. See .NRS 357.0'30 (defining "political subdivision' aS including counties, cities, a.nd "any other local government" entitY). • Thus, whenthe governinent-action bar in subsection' 3(b) efers to a "civil action" to which -"the State or political subdivision ísalready a party" (emphasis .added), it refers back to the specific State subdivision on whose account the privo.te Plaintiff haS brought an action pursuant to subsection 1. See NRS- 357.080(1) & (3); see alSo .American
SUPREME COURT Heritage Dictionary 1803 (5th ed. 2011) ("the," a definite article, us:ed i;o OF NEVADA
r(11 1947i 1.6 "denote particular, specified persons or things"). A contrary interpretation collapses "the State" and "political .subdivision" into one entity, i.e., the government," as any governmental. entity's lawsuit premised on the same CC
allegations or transactions would foreclose a private plaintiff from. pursuing recovery on behalf of a distinct entity. While the government-action bar in the federal FCA refers to "the Government" as one entity, see 3]. U.S.C. § 3730(e)(3), the plain language of the NFCA. makes clear that a claim may be brought on behalf of either the State or a political subdivision, or both. Such an interpretation makes sense in light of the distinction between state governmental entities in other contexts. Cf. Zebe v. county of Lander, -1.12 Nev. 1482, 1484-85, 929 P.2d 927, 928-29 (1996) (concluding that because "each county, acting th.rough its district attorney., has specific jurisdiction over acts conducted within its bOrders,": one county d.oe's not bin.d' a second county absent. f`the second county's [express] consent"); Clark .Cou'uty Lewis, 88 Nev. 354, 356-57:498 P.2d 363, 365 (1972) (noting that 'the ceunty• as a political subdivision has the power to compromise disputed claims or causes of action brought against it"). Applying this understanding to 'the Undisputed thets, NRS 357.080(3)(b) does not require dismissal. of relatcirs' private action. Relators allege that OTCs engaged in a. fraudulent scheme throughout the state. to avoid tra.nsient-lod.ging tax Obligations. • According to the • ainended coMplaint, •those transient-lodging ta.xes were assessed. in'Clark; Washoe, Douglas, Lyon, and Nye counties Under their resPective *countY:cOdes and state law. However, relators seek recoverý of the portion of the transient- lodging tax to which the State., not the respective county authorities, was entitled, and thus bring this case only on.their own account and that Of tiie State--not that of any political subdivisions. By contrast; the State is not SUPREME COURT OF NEVADA
)" 7 A 17 a. party to the action brought. by Clark County. Even a.ssuming the actions involve the same allegations or transactions, the two governmental entities, and the claims pertaining to each, involved in the private action and he "civil action" remain distinct. Thus, regardless of which. suit came first, NRS 357.080(3)(b) does not preclude relators from maintaining tb.e present qui-tam action. We also disagree with OTCs' assertion that failure to apply the governinent-action•bar u.surps legislative intent to enSure that gOvernipent officials, rather than private parties, Control goVernméntal claiy.ns and. encourages private 'parties to make law and• policy decisions that affect governmental interests. The NEVA ineentivizes priVate citiiens tó recover fiauduiently obtained- funds from violators on behalf of and fOr:the .benefit of the State or a political subdivision, while bearing the upfront financial 4,44, id..material burdens of litigation. See, NRS 357.210(1):.(2) (perMittirig riQrivate plaintiff to receive 'anywhere from 15 to 30 percent of a' recovery. depending- on whether the Attorney Gen€ral. or the Attorney General's d.cSignee intervened). Further, the Legislature has cOnferred control- over false-claims litigation exclusively on -the Attorney: General,. not, a S OTCs su.ggest, on all state or local' glivernment Officials. -8tee Simiainian v.Ural.); ez Cmt.;1. Coll. Sys: of Nev., 122 Nev. 187,190, 128 P.3d. 1057, 1059 ("Nevada's FCA permits the Attorney General,. or a private:!qui tam' plaintiff acting'. On his. own behalf and. on that of the 'State, to maintain ''an.aCtion- for treble dainages against 'a person' who, a m.ong other things-, presents a false claith for payment or • approval . . ." (ernphasis added)). •For exaMPle, the Legislature permits and -.mandates only the- Attorney General. or the • Attorney .General's designee• to investigate alleged -NITA liability: NRS 357.070(1), (2). And a priv,ete plaintiff who files a qui-tam action muSvfb!st SUPREME COURT OF NEVADA
18 give the Attorney General the opportunity to intervene, regardless of whether the suit is brought on behalf of the State or a political subdivision., or both., See NRS 357.080(4)-(5); NRS 357.110(1).. If the Attorney General does intervene, the Attorney Generaï takes over the litigation. See, e.g., NRS 357.120(3) (giving the Attorney General the authority to settle the action.). However, if the A.ttorney
General declines to intervene, the private plaintiff assumes "the same rights in conducting the acticin as the Attorney General 'ore the Attorney General's designee would have had." NRS 357.130(1). Even šo;• the 'private plaintiff must continue to provide the Attorney General with all pleadings
associated wi.th the matter. Id. MoreoVer, the Attorney General may nevertheless intervene even after initially declining to intervene. NRS
357.130(2)-(3). While these varieus subsections: emphasize the Attorney General's authority over false :claims actions, they do ndt convey a general intent to ensure the government, as if it constitutes a • single entity, maintains control or supervision over false claiMs litigated by• private
plaintiffs. Indeed, nowhere in NRS Chapter 357 does the NFCA authorize an independent local entity, such as Clark 'County, 'abSent the Attorney General's designation, to intervene in or otherWise control a private .duit• to protect its interests. Moreover, OTCs' focus On the substantial control given to the Attorney General ignores a crucial aspect of the NFCA that if the •Attorney General declines to intervene in. the pri.vate action., as occurred here, the Attorney General has in effect auth.orized the private plaintiffs, to litigate as if they were the Attorney General. See NRS 357.130(1). Thus, a decision to decline to intervene also involves a degree of control by the Atthrney General and, likewise, acknowledges that the private litigation of the
19 (0i 1947A State's or a political subdivision's claims may proceed. Further, here, the Attorney General did. not designate a county attorney to investigate and bring.an NFCA claim related .to Clark County's interests. In this respect, Clark County's suit, which includes no NFCA claim, is not directly implicated in relators' matter, as there is no overlap between the private plaintiffs' NFCA claim and the political subdivision's claims. Finally, even in vesting the Attorney General with. substan.tial
control over false-claims litigation, the Legislature has also expressed a policy that the State and its political su.bdivisions benefit from the private pursuit of false-claims litigation. In.deed, private enforcement not -onlY
saves the State and political subdivisions from expending resources to • pursue these claims but also results in positive returns to those entities. While, undoubtedly, some private plaintiffs. pursue these claims out of a clegree of self-interest, the Legislature has clearly endorSed financial incentives to encourage private plaintiffs to do so. See NRS 357.21.0(1)-(2) (allowing the private plaintiff to take a percentage of the ultimate recovery). Nor d.o these incentives harm the State or political subdivision, as they ultimately result in recovery to those entities and come out of the wrongdoer's pocket. Thus, consideration of the NFCA.as a whOle,•along With. its purpose, supports our interpretation of NRS 357.080(3)(b) a§ giving independent. meaning to "the State" and"political subdivision.". - • CONCLUSION •
'171ne government-action 'bar in NRS 357.0800)(6) prevents a private plaintiff from maintaining a private NFCA action if the aCtion based on the • same allegations or transactions that •are subject to a ciVil action to which the State or a-political subdivisiOn is -already a pa:rtji. We hold that application of this prevision precludes continuing 'an existing
') 0 I\IFCA case by a private plai.ntiff even if the government entity brings its civil action after the private case is initiated. However, we further conclude that the govcrnment-action bar applies only where the two at-issue Szlits involve the same governmental. entity as a party. Such an interpretation. preserves the Legislature's intent to differentiate between the terms "the State" and "a political subdivision" and acknowledges that the reference in NRS 357.08O(3)(b) to "the State or political subdivision" means the entity that is a. party to the Private plaintiffs suit. hirthermOre, our :interpretation also• comporta with the plirpose cif the. NFCA as a whole tO incenti,vize priva.te plaintiffs . tolitigate instances of fraud against the State or a political subdivision to free • up the re;3pective governmental entities' resources 'kir Other purposes. 'Nor does such an interpretation interfere with the .Attorney General's: control. over yate NITA suits, as. the Attorney General has the right to intervene arid 1.1S.T.; other Procedural mechanisMs toxercise a Certain amount of.control.
Applied here, NRS 357.080(3)(b) does not bar relators frOm Maintaining the instant suit because although the two at-issue-actionS may involVe the Same allegation.s or transactions to establish- liability,:relatori acti6n i.s 'brought on beh.all 6f the State and ilot on behalf Of anY subdivisions, while Clark County'S action is on behalf of itself and. the State
.6 (0) I 947 A is n.ot a party thereto. Accordingly, we deny the OTCs' petition for writ relief.10
e,
We concur:
4sai..g A/c‘. Stiglich
j.
Parraguirre
loThe stay thi.s court granted on August 18; 2022, is vacated, nnd. the relators may proceed with their action in di.strict court. SUPREME COURT OF NEVADA
(01 1947A 22 LEE, J., concurring: While I concur in the resiilt reached by the majority, I write separately to voice my disagreement with the majority's interpretation of NRS 357.080(3)(b). The statute is admittedly ambiguous given its concurrent use of the words "maintain" and "already," which creates a contradiction that must be reconciled to give the statute effect. See State v. Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011) ("[W]hen 'the statutory language lends itself to two or more reasonable interpretations,' the statute is ambiguous, and we may then look beyond the statute in determining legislative intent." (quoting State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004))). I note that the majority's interpretation is not an unreasonable one. However. their interpretation of"already" as encompassing future events is strained. NRS 357.080(3)(b) states, in pertinent part, that "[a]n action may not be tnaintained [i]f the action is based upon allegations or transactions . . . [in a] proceeding . . . to which the State or political subdivision is already a party." (Emphases added.) "Already," as ordinarily used, means that something occurred prior to the idea it modifies. "Already" here simply means that the State or political subdivision must have been a party to the proceeding prior to the plaintiff s action. If the State or political subdivision's proceeding "already" existed prior to the plaintiffs action., then the action may not be maintained. Thus, there is a natural sequenci.ng requirement in NRS 357.080(3):
(0) 19.17A .611P5P, hi holding that the govern.ment-action bar does not import a sequencing requirement, the majority consults the legislative history of the statute a.nd compares NRS 357.080(3)(b) with 31 U.S.C. § 3730(e)(3). Because Nevada's Legislature changed the word "bring" to "maintain," the majority asserts that the Legislature intended to reject any sequencing requirement. While this is not an unreasonable interpretation, one would have to turn a blind eye to the word "already," which in and of itself conveys sequencing. I'submit that the single word change from."bring" to "Maintain" is not a clear indication of legislative intent. Instead, the use of "maintain" instead. of "bring" ha.s its Ordinary meaning: even if the plaintiffs somehow managed to bring this action after a related proceeding, they may .not continu.e the action if the State or political subdivision began the related proceeding prior to the plaintiff s action. In addition to an assessment of legislative history when dealing. with an ambiguous statute, We look 'to reason tiid public Pcilicy considerations to decipher legislative intent. Lucero, 127 NeV. at 95, 249 P.3d at 1228. ("PO interpret an ambiguous statute, We loOk•to the lagi;51ative history and construe the statute in a ma.nner that is corisistent wAh reason. and pUblic policy."). As a practical matter, it doe's not Make sense to permit qui-ta.m actions, only for a political subdivision to swoop in at any time. It is not clear Why any private plaintiff would take the risk of fUnding tliis form of litigatión giVen the majority's interpretation. •Recognitio.n a the inherent sequencing set• forth in the government4tction bar promotes the legislative policy • of incentivizing, encouraging, and enabling 'private plaintiff qui-tain actions.
i947A 2 But because the government-action bar is inapplicable in this matter for the reasons set forth in the majority's opinion, I concur with the remainder of the majority's opinion.
J. Lee Opt-,
3 ( (4 I 947,1 =1.affir,