Whistleblower lawsuits are filed under seal. That means by law, the filing of the suit and its contents are secret. Neither the lawyer nor the whistleblower can discuss the case. By law, they can’t even acknowledge that there is a case.
While this sounds a bit extreme, the law was designed to allow the government the opportunity to investigate the case without outside interference. The goal is to prevent the defendant from being tipped off about the investigation.
Courts take breaches of the sealing order seriously. One who breaches the seal and either discloses that a whistleblower suit has been filed, or worse, discusses the details of the case, can be punished severely. Sanctions can include a finding of criminal contempt, fines or even dismissal of the case. Because the case is filed in the name of the United States and on behalf of taxpayers, courts are reluctant to dismiss the case but they will punish the person who breached the seal.
A defendant in a whistleblower lawsuit pending in Birmingham, Alabama asked the court’s chief judge to boot the whistleblower’s lawyer from the case because she spoke to reporters about the case in violation of a confidentiality agreement. Because the jury has not completed its work, the public disclosure of a possible settlement should not have been made. The lawyer, Nola Cross of Milwaukee, could lose her right to collect a fee if she is removed from the case.
According to published reports, Cross told reporters that she was hopeful a settlement was in the works. That remark, made while the case was still pending, could mean Cross is removed from the case.
Although not quite as bad as breaching the seal, discussing a case with the press in violation of a confidentiality agreement is serious. Chief Judge Karon Owen Bowdre agreed and said if the allegations are true, the defendant’s concerns with Cross’ behavior were justified.
The defendant, AseraCare, is accused of not giving complete information to physicians charged with determining if patients qualified for continued hospice care. The complaint claims that AseraCare committed Medicare fraud by overbilling Medicare for patients that did not qualify for hospice care. By “cherry picking” the information available for doctors to review, the company further facilitated its fraudulent scheme.
The moral of the story is quite straightforward. If a whistleblower case is covered by the court’s sealing order or a confidentiality agreement, courts will step in and take action if information about the case has been improperly disclosed.
If you have a pending whistleblower case under the False Claims Act, don’t discuss it with anyone. Often it is tempting to tell a co-worker or friend but if word gets out, you could lose the ability to collect an award.
Even if you have not yet filed, it is still a good idea to not speak to others about your plan. Tipping off defendants lowers the chance of an award. Companies that know an investigation is likely have more time to hide documents and transfer the employees with knowledge of the fraud.
If you are interested in becoming a whistleblower, make us your first call. Our whistleblower clients have received over $100 million in awards. For more information, contact attorney Brian Mahany at or (414) 704-6731 (direct).
MahanyLaw – America’s Whistleblower Lawyers