United States: Tenth Circuit Materially Adds To Original Source Jurisprudence In Case About Background Investigations

Last Updated: June 4 2019
Article by Manvin S. Mayell and Kathleen C. Cooperstein

Under the public disclosure bar, False Claims Act (FCA) relators are prevented from pursuing allegations that are already in the public domain—unless the relator is deemed to be an "original source" of the information. In 2010, Congress amended the FCA to define original source as a person who "has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions" (provided that person also had given the government that information before suing). But the issue of what information constitutes a material addition is a mystery that the courts struggled with for some time now. The post-2010 "materially adds" standard requires relators to bring something to the table—but what that "something" should be has proven difficult for courts to define given the inherently vague language of the statute.

The jurisprudence on the "materially adds" standard caught a big break just a few weeks ago when the Tenth Circuit closely examined it in United States ex rel. Reed v. Keypoint Government Solutions, 2019 WL 1907853 (10th Cir. April 30, 2019). The alleged fraud in Reed accused a federal contractor of cutting corners in conducting background investigations by falsifying corrective action reports where its employees had exceeded a permissible level of telephone interviews. The court held that prior public disclosures about fraud in conducting background checks (including about the two other "main players" in the background-investigation industry) was sufficient to "set the government on the trail" of defendant's alleged fraud. But the court then had to examine whether relator, a former quality control analyst for defendant, materially added to the public information to qualify as an original source.

After canvassing decisions from sister circuits, the Reed court concluded that "materially adds" means that a relator must "disclose new information that is sufficiently significant or important that would be capable of 'influenc[ing] the behavior of the recipient' – i.e., the government." Reed (quoting U.S. ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d 201, 211 (1st Cir. 2016)). The court specifically rejected the standard of the Seventh Circuit in Cause of Action v. Chicago Transit Authority, 815 F.3d 267 (7th Cir. 2016), which found that a relator did not "materially add" because his allegations were "substantially similar" to those in the prior public disclosure. The Tenth Circuit in Reed found that the standard left little room for application of the original source exception—one only considers the original source exception where there is substantial similarity between the information in the public domain and that in a relator's complaint.

The Reed court adopted some guideposts for the "materially adds" standard from the First Circuit's Winkelman case—stating that whether a relator's information is significant depends on the level of detail in the public disclosures. It also asserted that merely including additional "detail or color" to the elements of a scheme that has already been publicly disclosed does not materially add. Applying the standard to the facts, the Tenth Circuit reversed the district court's holding that the original source exception did not apply.

Applying this standard to the facts, the Tenth Circuit reversed the district court's holding that relator was not an original source. The court found that details the relator provided about the telephone scheme were not contained in the prior public disclosures. The court also found that the relator's information provided direct evidence of defendant's scienter, noting that scienter was often difficult to prove. The relator's information included responses by defendant's management to her complaints that suggested that defendant knew it was violating background check requirements. Thus, the relator had added materially to the prior disclosures.

Interestingly, the Tenth Circuit also held that simply naming a specific defendant as a wrongdoer did not materially add to the public disclosures, many of which related to the private contractor background check industry as a whole. Nor did the relator materially add to public disclosures simply because she conducted her own investigation or because her information was based on personal knowledge—both factors that could have supported original source status under the old "direct and independent knowledge" standard. Rather, the court found the relator's information "expanded the scope of the fraud" that had been revealed in the public disclosures. Ultimately, the court remanded to the district court to determine whether the relator's information was independent—an issue not determined in the first instance below.

The Reed case provides a useful guide to those litigating original source issues revolving around the "materially adds" standard. While the inquiry may ultimately be very fact specific, it is helpful to have an articulated standard that adds some clarity to the meaning of "materially adds."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions