Silbersher v. Valeant Pharmaceuticals International, Inc

Background

Plaintiff-relator Zachary Silbersher alleged that Valeant Pharmaceuticals International, Inc., Valeant Pharmaceuticals International, Salix Pharmaceuticals, Ltd., Salix Pharmaceuticals, Inc., and Dr. Falk Pharma GmbH violated the federal False Claims Act and state-law equivalents by fraudulently obtaining a patent for Apriso. According to the allegations, the patent allowed the defendants to charge monopoly prices, leading government-funded health programs such as Medicare and Medicaid to pay inflated prices.

After a prior Ninth Circuit ruling concerning the False Claims Act’s public-disclosure bar, Silbersher filed a second amended complaint. The defendants asked the court to dismiss it.

Why the Court Dismissed the Complaint

Under Federal Rule of Civil Procedure 8, a complaint generally must provide enough facts to make the claim plausible. Because Silbersher alleged fraud, Rule 9(b) also required him to describe the circumstances of the alleged fraud with particularity. In this context, the complaint needed to give notice of who allegedly did what, when, where, and how. When multiple defendants are accused, the complaint generally must identify each defendant’s role rather than treat all defendants as one group.

The court found that the second amended complaint attributed the allegations about the allegedly fraudulent patent to “Defendants” collectively, without distinguishing among Valeant, Salix, and Dr. Falk. The court also found that general statements that the defendants jointly collaborated in developing, manufacturing, selling, and distributing Apriso did not cure the problem because those statements lacked a factual basis explaining each defendant’s alleged participation.

Silbersher relied on evidence outside the complaint and suggested that the defendants’ roles could be determined through inferences from documents. The court rejected that approach, stating that the plaintiff had to plead the necessary facts in the complaint rather than ask the court or defendants to determine the roles from outside materials.

Ruling and Case Status

The court dismissed the second amended complaint as to all defendants without prejudice and granted leave to amend. It said Silbersher could file an amended complaint consistent with the order by August 11, 2025, but could not add new parties or claims without the court’s prior consent. The court stated that another opportunity to amend after a third amended complaint was unlikely. It also directed Silbersher to serve the amended complaint on Dr. Falk by email and file proof of service by August 14, 2025.

The court denied the parties’ requests for judicial notice and granted, on that occasion only, an unopposed request to file an oversized reply brief. It declined to consider Dr. Falk’s late service-of-process argument. Judge James Donato signed the order.