On February 3, 2022, the First Department issued a decision in State of N.Y. ex rel. Solomon v. Siemens Elec., LLC, 2022 NY Slip Op. 00746, affirming the dismissal of a False Claims Act suit because the plaintiff was not the original source of the information alleged in the complaint, explaining:
Based on the application of the NYFCA’s public disclosure bar and the finding that the relator failed to adequately allege that he was an original source of the relevant factual allegations, Supreme Court correctly dismissed the follow-on action alleging NYFCA violations based on defendants’ participation in a construction union gratis pay scheme — that is, billing for hours not actually worked — at the Croton Water Filtration Plant. Here, there were, in fact, prior public reports of numerous, actual instances of an industry-wide fraud that led to public criminal settlements involving specific industry players.
Relator makes conclusory assertions that he is an original source of the information regarding the gratis pay scheme [*2]at the Croton Plant based on information gleaned from his position as a high-level insider of defendants and an employee at the Croton site who worked with union members and accounting staff, many of whom he knew personally. However, these assertions do not constitute statements of specific underlying fact, going beyond those that were already publicly disclosed, that are necessary to sustain his claims. It is not enough for relator to assert that he knows, based on his awareness of the prevalence of the gratis pay scheme in the industry and his unspecified claims of experiences and observations at the Croton Plant, that the invoices contained false submissions of payment for overtime hours not actually worked.
(Internal citations omitted).