Silbersher v. Allergan plc

Background

Silbersher asserted claims under the federal False Claims Act and various state false-claims laws. He alleged that Adamas and Allergan misled the United States Patent Office into issuing invalid patents for Namenda XR and Namzaric, allowing the defendants to maintain monopoly power and charge government programs too much for those drugs.

The court initially denied the defendants’ motions to dismiss. The Ninth Circuit later held that disclosures in patent-prosecution histories could trigger the False Claims Act’s public-disclosure bar and remanded for the district court to decide whether Silbersher qualified as an “original source,” meaning a person whose independent knowledge allows him to avoid that bar. On remand, this court concluded that Silbersher was not an original source and that the patent records disclosed substantially the same allegations or transactions as his claims. On March 20, 2023, the court dismissed the False Claims Act claims with prejudice, dismissed the state-law claims without prejudice, and entered judgment for Allergan and Adamas. Silbersher appealed, and the appeal remained pending.

The motion

After the Ninth Circuit issued its later Valeant decision, Silbersher moved under Federal Rule of Civil Procedure 60(b)(6) for relief from the judgment. That rule permits relief from a final judgment in extraordinary circumstances. Because the appeal had already been docketed, the district court could not grant Rule 60(b) relief without a remand. Under Rule 62.1, however, it could issue an “indicative ruling” stating either that it would grant the motion if the appeals court remanded the case or that the motion raised a substantial issue.

Silbersher argued that Valeant conflicted with the reasoning supporting this court’s dismissal. In particular, he argued that the patent-prosecution disclosures were not substantially the same as his allegations and that the court should reconsider whether he was an original source. Allergan and Adamas opposed the motion, arguing that it improperly asked the district court to decide issues already presented to the Ninth Circuit. They also argued that the motion was untimely and that the relevant factors did not support relief.

Court’s reasoning

The court declined to issue an indicative ruling. It emphasized that Silbersher’s main arguments were already before the Ninth Circuit, including the questions whether he had waived his challenge to the “substantially the same” requirement and whether Valeant warranted a different result. The court found that the Ninth Circuit was best positioned to decide the legal effect of its own decision and had no need for the district court’s advice.

The court also concluded that an indicative ruling would not promote judicial efficiency. If the Ninth Circuit remanded the case for the district court to reconsider the issue, another appeal would likely follow. The appeal itself could resolve the issue, including if the Ninth Circuit concluded that Silbersher was an original source and therefore that the public-disclosure bar did not apply.

Disposition

The court concluded that the requested indicative ruling was inappropriate and denied the Motion for Indicative Ruling for Post-Judgment Relief Pursuant to Rules 60 and 62.1. The order did not vacate the judgment or state that the court would grant Silbersher’s Rule 60(b)(6) motion.