When a whistleblower lawsuit is filed, the court enters an order “sealing” the case. Whistleblowers may be confused about what the “seal” means. A “seal” is a court order directing that the clerk of court keep the case private and not open to the public. It is not available on the website maintained by the United States District Courts known as PACER. The order also directs the parties, their lawyers and anyone else who works in the court system, to keep the case confidential.
It is clear that the intention of the court in entering such an order is to give the government the opportunity to investigate the alleged fraud before the defendant knows about the case and has the opportunity to destroy or change records, or speak with and change the testimony of witnesses. It also avoids the possibility that the company will file for bankruptcy or try to retaliate against the whistleblower.
The question frequently arises about what the “seal” means in day-to-day life. A qui tam case can take years before it becomes public, which is known as “lifting the seal.” In the meantime, can a whistle blower discuss the case with his or her spouse? What about colleagues that may have good information about the situation that led to the filing of the complaint? After the lawsuit is filed, can a whistleblower say anything about the case? Once that question is answered the next logical question is what happens if the relator (whistleblower) violates the seal? Is the case dismissed? Does the defendant get the case dismissed? These are all questions I am asked from time to time, so I wanted to spend some time providing answers.
First, anyone who intentionally violates a court order may be held in contempt of court. Contempt may involve the court ordering the violator to pay a fine, do community service, or in very severe situations, to serve time in jail. Intentional violation of the court’s order sealing the case must always be avoided. But is telling your family about this important event an intentional violation? This past June, an Ohio court found that a whistleblower that told his family about his case did not violate the False Claims Act (United States ex rel. Donald Gale v. Omnicare, 2013 WL 2476853 (June 7, 2013, N.D. Ohio).
Defendants try to get these crucial cases dismissed for any possible procedural violation and they are frequently successful in doing so. It is for this reason that experienced qui tam lawyers be retained. They will file the lawsuit in camera (in private) and ask for an order sealing the case, which is required by law.
The Ohio case, in particular, shows just how far defendants are willing go to obtain a dismissal of these cases. The whistleblower in the Ohio case simply told his wife that he had filed a False Claims Act case. The court found that this was not a public disclosure and the whistleblower did not violate the seal. In a closer call, the whistleblower also told a former co-worker at his company that he was meeting with his lawyers to discuss his case. Again, the court found that the whistleblower did not violate the seal.
The defendant in the case claimed “if the relator so much as mentions attorneys or a lawsuit with the defendant to anyone except the government, the relator must be dismissed.” The court, however, sided with the whistleblower in this case; ruling that dismissing the case would be going too far. In fact, several federal courts have held that the filing of the case cannot be discussed “publically” but that the actual fraud committed by a company may be publically disclosed (American Civil Liberties Union v. Holder, 673 F.3d 245, 254 (4th Cir. 2011)). For example, a relator cannot discuss the qui tam case she filed with the New York Times without violating the seal, but if she talks about the fraud itself without revealing that she has filed a qui tam action, she has not violated the seal (United States ex rel Lujan v. Hughes Aircraft Co., 67 F. 3d 242, 244 (9th Cir. 1995).
This case reminds us that, as a whistleblower, you are under intense scrutiny before you file your case until long after the case is “unsealed.” While discussing the case with your spouse may be acceptable, my advice is it’s always best to keep every aspect of the case to yourself, discussing the case solely with your attorney. There are many examples of a potential whistleblower that shared his concerns with a co-worker only to learn that the co-worker filed a False Claims Act (qui tam) case before he could hire a lawyer. The talkative whistleblower lost out on a substantial award because, as the saying goes “loose lips sink ships.” On the other hand, if something accidently slips out as you have lunch with friends, I would advise you to talk to your lawyer as soon as possible. While he or she will not be happy about the discussion, it is better for the lawyer to be prepared to address the issue than to be surprised by the defendant.