United States of America v. Moderna US Inc.
- William Alsup
- 3:23-cv-01103
- U.S. District Court · Northern District of California
- 3
In United States v. Moderna US Inc., Judge Alsup denied reconsideration, requiring the relator to obtain counsel to continue the False Claims Act action.
Sean Solomon’s ability to continue the False Claims Act action without a lawyer was directly affected. Moderna US Inc. and the United States were also affected by the order governing whether the action could proceed.
What happened
In United States of America ex rel. Sean Solomon v. Moderna US Inc., Sean Solomon, representing himself, claimed Moderna’s COVID-19 vaccine was “snake oil” because it prevents COVID-19 symptoms rather than infection or transmission. The United States declined to join the case and requested that the case be dismissed unless Solomon obtained a lawyer. The court had previously unsealed the case and given Solomon 30 days to obtain counsel.
Solomon asked the court to reconsider that order so he could continue without a lawyer. The court explained that a person bringing a False Claims Act case for the government may have the right to bring the case but cannot represent the United States without counsel. The court also rejected Solomon’s reliance on a Supreme Court decision about parents representing their own rights in education cases, because the False Claims Act involves the government’s right not to be defrauded.
Judge William Alsup denied Solomon’s request for reconsideration. The court gave Solomon until October 24, 2023, to obtain experienced counsel and have that lawyer file a notice of appearance, stating that the action would otherwise be dismissed.
The detailed version
- United States of America v. Moderna US Inc. · No. 3:23-cv-01103
- William Alsup
- Sept. 26, 2023
Background
Sean Solomon, proceeding without a lawyer, filed a whistleblower action under the False Claims Act against Moderna US Inc. He alleged that Moderna’s COVID-19 vaccine was “snake oil” because it was intended to prevent COVID-19 symptoms rather than infection or transmission of the virus.
The United States declined to intervene, meaning it chose not to take over the litigation. It requested that the filings be unsealed and that the action be dismissed unless Solomon obtained counsel. The court then unsealed the action and gave Solomon 30 days to obtain a lawyer. Solomon moved for reconsideration and asked to continue representing himself.
Analysis
The court relied on Ninth Circuit precedent holding that a relator—a person who brings a False Claims Act action for the government—cannot prosecute a qui tam action without counsel. The court distinguished the issue from standing. Standing concerns whether a person has the legal ability to bring a dispute to court; the court explained that a relator may have standing but still may not represent the United States without a lawyer.
The court rejected Solomon’s argument that the Supreme Court’s decision in Winkelman v. Parma City School District allowed him to proceed without counsel. According to the court, Winkelman involved parents enforcing their own independent rights under the Individuals with Disabilities Education Act. By contrast, a False Claims Act relator brings the case to enforce the government’s right not to be defrauded. The court therefore concluded that Solomon’s reliance on Winkelman was misplaced.
Disposition
The court DENIED Solomon’s request for reconsideration. It gave him until October 24, 2023, to obtain experienced counsel and have counsel file a notice of appearance. The order stated that the action shall be dismissed if he did not do so.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.