Richard Mark v. Shamir USA, Inc.

facts as alleged are true, and examine only whether relator’s allegations support a

cause of action under the theories presented. See id. Whether a particular disclosure

triggers the public disclosure bar is a mixed question of law and fact that we review

de novo. See United States ex rel. Found. Aiding The Elderly v. Horizon W., Inc., 265

F.3d 1011, 1013 (9th Cir. 2001) (citation omitted), amended on denial of reh’g, 275

F.3d 1189 (9th Cir. 2001).

The AKS prohibits the knowing and willful solicitation, receipt, offer or

payment of any remuneration in return for referral to a health care provider; or

arranging the use of any health service, facility, or item. See 42 U.S.C. § 1320a-7b(b);

see also Hanlester Network v. Shalala, 51 F.3d 1390, 1394 (9th Cir. 1995). The

3 payment of illegal kickbacks is a violation of the FCA. See 42 U.S.C.§ 1320a-7b(g)

(referencing the False Claims Act).

The FCA permits relators to bring an action on behalf of the government

“against companies that knowingly present, or cause to be presented a false or

fraudulent claim for payment or approval to the federal government.” United States

ex rel. Solis v. Millennium Pharms., Inc., 885 F.3d…