Can a Qui Tam Whistleblower Remain Anonymous?
Whistleblowers often risk losing their jobs, getting demoted, or damaging their professional reputations when reporting that a company or person has committed fraud against the government. In some situations, whistleblowers may even risk their safety. As a result of these risks, many potential whistleblowers want to know whether their identities will remain anonymous after they file a qui tam action against a defendant. The short answer is initially, yes, but eventually, no.
While a whistleblower’s desire to conceal his or her identity often is justified to avoid retaliation, anonymity usually can only be achieved in the short term. Under the federal False Claims Act (“FCA”) (31 U.S.C. § 3701 et seq.), when a whistleblower files a qui tam action, the lawsuit and the whistleblower’s identity will remain “under seal” during the government’s investigation of the whistleblower’s claims. And while the FCA only provides for the seal period to last 60 days, the government often will apply to the court for one or more extensions of time to extend the seal period. This may lead the seal period to be extended from 60 days to a year or even several years. Nonetheless, the case will eventually become unsealed at some point, and both the whistleblower’s identity and the claims the whistleblower asserted against the defendant will become public.
How a case becomes unsealed occurs in one of three ways. The first way, and the one most favorable for the whistleblower, is when the government decides to intervene in the case. Intervention by the government frequently leads the case to settle. Under this scenario, the disclosure of the whistleblower’s identity and the lawsuit will be often be a worthy sacrifice for the whistleblower, particularly if intervention causes the case to settle.
The second situation is when the government has not yet completed its investigation and reserves the right to intervene later, but the court has denied the government’s request for any further extensions of the seal period. This scenario is less desirable than the first because the defendant will learn the whistleblower’s identity without any assurance that the government will intervene in the case. If the government continues to investigate the claims and supports the whistleblower’s continuation of the litigation, however, the consequence of the public disclosure of the whistleblower’s identity still may prove a worthy sacrifice.
The third scenario is when the government has decided not to intervene in this case and has informed the whistleblower that it will not seek any further extensions of the seal period. This circumstance may be undesirable to some whistleblowers who are concerned about the revelation of their identity, but such disclosure is inevitable when the government does not intervene in the case. At that point, the case becomes unsealed and the whistleblower must decide whether to litigate the case through his or her own attorney, often without government participation or support.
In sum, when a whistleblower considers filing a qui tam action, the whistleblower must appreciate that both the whistleblower’s identity and allegations will become public at some point. Like any plaintiff that files a lawsuit, the plaintiff should weigh the pro and cons of bringing the claims, but a whistleblower also must factor in that his or her identity and allegations will be disclosed eventually. When the qui tam case is strong on liability and damages, the inevitable revelation of the whistleblower’s identity is often outweighed by the whistleblower’s potential share of the government’s recovery. When the claims are questionable, however, the whistleblower should consider that his or her identity will be revealed once the case is unsealed, and the whistleblower may be saddled with a decision (or dilemma) whether to litigate the action without the government’s positional support or resources. Thus, one of the most important steps a whistleblower should take prior to bringing a case, is to obtain the advice and analysis of experienced qui tam counsel in order to determine the strength of the claims and the likelihood of government intervention.
If you are considering filing a qui tam action and would like to obtain the advice and analysis of experienced qui tam counsel, please call Rabin Kammerer Johnson at 561-659-7878 or 1-877-915-4040.