USA ex rel v. Astrazeneca

2012 DNH 199

• Court: District Court, D. New Hampshire
• Decided: December 11, 2012
• Docket: 10-CV-480-SM
• Status: Published

Opinion

USA ex rel v . Astrazeneca 10-CV-480-SM 12/11/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, et a l . , ex rel; Ven-A-Care of the Florida Keys, Inc.; and John M . Lockwood, M.D., Plaintiffs Case N o . 10-cv-480-SM v. Opinion N o . 2012 DNH 199

Astrazeneca L P , et a l . Defendants

O R D E R

The government has notified the court, pursuant to 31 U.S.C.

§ 3730(b)(4)(B), that it declines to take over this qui tam

action. Accordingly, the persons bringing the action shall have

the right to conduct i t . Id.

In declining to participate, the government asks the court

to “solicit the written consent of the United States” before

approving any settlement or dismissal or other discontinuation of

the case. In support of that request, the government cites

31 U.S.C. § 3730(b)(1) for the proposition that the “action may

be dismissed only if the court and the Attorney General give

written consent to the dismissal and their reasons for

consenting.” That statutory provision has been generally

construed to apply when a plaintiff seeks to voluntarily dismiss or settle his or her claims (and not, for example, when a motion

to dismiss for failure to state a claim is granted). See e.g.

United States ex rel. Shaver v . Lucas W . Corp., 237 F.3d 932 (8th

Cir. 2001); United States ex rel. S . Prawer & C o . v . Fleet Bank

of Maine, 855 F. Supp. 419 (D. M e . 1993). And, the Attorney

General’s consent may not be required in other circumstances as

well. S o , the government’s premise is overly broad. The parties

are fully capable of complying with the law and no doubt will

solicit the Attorney General’s approval if they deem that

approval statutorily required to validate any future disposition.

And, if the court deems the government’s consent to be necessary

it can disapprove any disposition proposed in its absence.

The government also seems to be asking the court to assume

responsibility for providing it with copies of all pleadings

filed in the action, citing § 3730(c)(3). That subsection

provides that when the government declines to intervene in a qui

tam action, “If the Government so requests, it shall be served

with copies of all pleadings filed in the action and shall be

supplied with copies of all deposition transcripts (at the

Government’s expense).” The government should, then, address its

request to be served with pleadings and deposition transcripts to

the parties — the court does not generally “serve” pleadings.

(The court would also point out that the civil dockets in this

2 district are easily accessed through electronic means.) As for

court orders, the clerk will include the government on the list

of counsel and thereby provide notice and copies of any orders

entered.

Finally, the government “reserves its right,” and requests

that the court acknowledge in an order that “The United States

has the right to intervene in this action, for good cause, at any

time,” citing § 3730(c)(3). Actually, the statute provides that

“When a person proceeds with the action, the court, without

limiting the status and rights of the person initiating the

action, may nevertheless permit the government to intervene at a

later date upon a showing of good cause.” (Emphasis added.) The

government’s motion and proposed order overstates its statutory

intervention rights; it has no absolute right to intervene in the

future that it can “reserve.” Given the number of extensions

granted to permit the government to decide whether it would or

would not intervene in this case, the court would have to be

persuaded that it should exercise its discretion to allow future

intervention, and would not likely permit intervention in the

future on a mere showing of minimal “good cause.”

The government’s proposed order (document n o . 22-1) is not

adopted as it overstates its rights under applicable law.

3 Conclusion

The Complaint shall be unsealed and served on the defendants

by the relators. The record as it relates to matters preceding

this order (excepting the Complaint (document n o . 1 ) and the

Notice of Election and proposed order (document n o . 22)) shall

remain sealed. The record from this point forward will not be

under seal. The clerk shall continue government counsel in the

status of counsel of record for purposes of receiving copies of

court orders entered in this case only.

SO ORDERED.

C—^^^1^^^^^^

Steven J . McAuliffe Jnited States District Judge

December 1 1 , 2012

cc: C . Jarrett Anderson, Esq. James J. Breen, Esq. Steven E . Grill, Esq. John J. Farley, AUSA