RW Files Cert. Petition Challenging D.C. Circuit’s Restrictive FCA Standards

Last Friday, the Firm filed a cert. petition in United States ex rel. O’Connor v. USCC Wireless Investment asking the Supreme Court to review a D.C. Circuit decision that restricts whistleblowers’ ability to pursue False Claims Act cases. The case involves an alleged multi-million dollar fraud scheme where U.S. Cellular used sham small businesses to obtain $163 million in FCC spectrum auction discounts reserved for small businesses. Despite conducting a five-year investigation that uncovered crucial evidence of the fraud—including hidden spectrum sharing agreements and fabricated FCC filings—the D.C. Circuit dismissed the whistleblowers’ case under an increasingly restrictive interpretation of the False Claims Act's public disclosure defense. The petition presents two questions: whether FCA plaintiffs must anticipate and negate affirmative defenses in their complaints, contrary to Cunningham v. Cornell University, and whether the circuit’s "“materially adds" standard—requiring information so significant it would prompt government prosecution—effectively eliminates the original-source exception for whistleblowers in declined cases, creating an impossible Catch-22 and deepening a circuit split on this critical anti-fraud statute.