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PUBLIC DISCLOSURE BAR: WHY YOU NEED EXPERIENCED WHISTLEBLOWER COUNSEL

Navigating the complexities of the public disclosure bar within the False Claims Act (FCA) requires specialized legal expertise. For a whistleblower seeking to expose fraud against the federal government, understanding the nuances of this bar, its exceptions, and recent interpretations by the Supreme Court is critical to ensuring their qui tam complaint proceeds successfully. Below, we explore key aspects of the public disclosure bar, its implications, and why experienced whistleblower counsel is essential.

What Is the Public Disclosure Bar in Relation to the False Claims Act?

The public disclosure bar prevents whistleblowers from pursuing qui tam lawsuits if the allegations or transactions have already been publicly disclosed through certain channels, such as the news media, federal reports, or government audits. This provision is designed to strike a balance between encouraging whistleblowers to report fraud and discouraging opportunistic lawsuits based on publicly available information.

Why Was the Public Disclosure Bar Created?

The public disclosure bar was created to:

  1. Deter frivolous lawsuits: It limits qui tam actions based on information already known to the federal government.
  2. Encourage whistleblowers with original knowledge: It ensures that individuals with materially significant information about alleged fraud come forward.
  3. Preserve judicial resources: By weeding out cases based solely on public information, courts can focus on actionable claims.

What Is the Original Source Exception?

The original source exception allows a relator to proceed with a qui tam suit despite the public disclosure bar, provided they:

  1. Have direct and independent knowledge of the allegations or transactions in question
  2. Have voluntarily provided this knowledge to the government before filing the qui tam claim

For example, in the United States ex rel. Rockey v. Strafford, the court explained that a whistleblower who adds materially significant information to publicly disclosed allegations may qualify as an original source.

What Are the Criteria That Determine Whether the Public Disclosure Bar Applies?

Courts use a two-part test to determine if the public disclosure bar applies:

  1. Was the information publicly disclosed?: This includes disclosures through news media, federal agency reports, or administrative proceedings.
  2. Are the allegations substantially the same?: If the relator’s complaint is based on substantially the same allegations as those already disclosed, the bar may apply.

2010 Public Disclosure Bar Developments

The 2010 amendments to the FCA narrowed the scope of the public disclosure bar:

  • Narrowing the Bar: The bar now applies only when disclosures are made through specific public channels, such as an administrative hearing or federal report.
  • Expanding the Original Source Exception: A relator now qualifies if they materially add to publicly available information, even if they don’t have direct access to the underlying fraud.

Updates to the Public Disclosure Bar

Recent cases highlight how the public disclosure bar is evolving:

  1. Valeant Pharma: The district court’s dismissal in this case clarified the importance of what constitutes “substantially the same allegations.”
  2. News Media and Public Information: Courts are increasingly scrutinizing what qualifies as publicly disclosed through blogs, news outlets, and other digital platforms.
  3. Quick Trigger Determinations: Some courts, including the Eleventh Circuit, have favored rapid dismissal of FCA claims based on perceived public disclosure, even if nuances of the case suggest otherwise.

Why You Need Experienced Whistleblower Counsel

Filing a qui tam complaint under the FCA is complex, and the public disclosure bar is just one of several potential hurdles. An experienced qui tam lawyer is critical to navigating these challenges and ensuring your case is heard.

Other Bars to a Qui Tam Lawsuit

In addition to the public disclosure bar, other barriers include:

  1. First-to-File Rule: Prevents multiple whistleblowers from filing on the same allegations
  2. Statute of Limitations: Sets time limits for bringing FCA claims
  3. Government Action Bar: Bars suits where the government is already pursuing the same allegations through other channels

Each of these bars underscores the need for a seasoned whistleblower attorney to address procedural and substantive legal hurdles.

How Can an Inexperienced Lawyer Jeopardize Your Case?

An inexperienced lawyer may:

  1. Fail to Address the Public Disclosure Bar: Without understanding how to counteract defendants’ public disclosure defenses, your case risks early dismissal.
  2. Miss Critical Deadlines: Failure to file within statutory limits may result in dismissal, regardless of the merits.
  3. Overlook Nuances: Subtle factors, such as whether blog posts qualify as public disclosure, require deep knowledge of FCA law.

Consult a Whistleblower Lawyer Who Specializes in False Claims Act Law

Engaging a law firm like the McCabe Law Firm, which specializes in False Claims Act FCA litigation, ensures you’re working with experts in this highly technical field. A knowledgeable attorney can:

  • Analyze whether the public disclosure bar applies
  • Leverage the original source exception to strengthen your case
  • Address jurisdictional challenges in the district court or on appeal

Conclusion

The FCA’s public disclosure bar plays a pivotal role in shaping qui tam lawsuits under the False Claims Act, particularly when whistleblowers seek to expose fraud involving government contractors. With evolving interpretations and legal complexities, such as when a court rejects claims for insufficient independent evidence, navigating these hurdles requires seasoned legal expertise. Whether countering dismissal motions in district courts, addressing findings by the Government Accountability Office, or dealing with allegations of federal criminal misconduct, the stakes are high for relators under the FCA.

Partnering with an experienced whistleblower lawyer ensures your case is well-prepared to overcome challenges like the public disclosure bar and establish eligibility under the original source exception. With the right legal guidance, you can maximize the chances of success in holding fraudulent entities accountable.

For expert guidance, visit the False Claims guide or consult an experienced False Claims lawyer at the McCabe Law Firm.