A whistleblower may ask himself “can I file a qui tam lawsuit anonymously”. In fact, the whistleblower must do so, at least at the beginning of the case. The real issue is how strong the anonymity is, and how long it will stay in place. There is no absolute answer to these two questions. However, there are some general concepts you can keep in mind when deciding whether to begin a qui tam lawsuit.
What Are the Anonymous Protections Provided by the False Claims Act?
To begin a qui tam action under the False Claims Act, the relator must file the complaint “under seal”. This means the relator files the complaint with the court in secret. The only people who know are the court itself, the relator and the US government.
Unlike the typical civil case where the plaintiff will serve a copy of the complaint on the defendant, the relator (who is effectively the plaintiff) only serves a copy of the complaint on the US government. This is to make them aware of the qui tam action and allow them to investigate the allegations.
Both the government and relator must honor the seal and not divulge the existence of the qui tam action to anyone (except the relator’s attorney, of course). Therefore, at this stage of the qui tam process, the relator’s anonymity should be secure. However, employers and organizations may connect the dots in situations where they become the target of a government investigation into areas or things that only a few people know. As a result, it can sometimes be easy to piece things together and figure out who might be the whistleblower.
Length of Time a Qui Tam Case Is Under Seal
Another thing to know about the qui tam case under seal: the False Claims Act only guarantees the case will be under seal for 60 days. Once this 60 day period passes, there is an option to lift the seal. Depending on the investigation progress, the government can choose to extend the seal, but there’s no guarantee it will. It is the government, not the relator, who decides whether to lift the seal and when.
Assuming the relator’s anonymity still exists during this initial phase, after the US government completes its investigation, the qui tam lawsuit will no longer be under seal. While this may not explicitly reveal the relator’s identity, most defendants can figure it out when the qui tam action goes public.
At the very least, the defendant will probably learn of the relator’s identity at trial. This is because the relator may prosecute the qui tam action themselves or provide a great deal of assistance to the government’s prosecution of the qui tam action (should the government choose to intervene and join the case).
Can Anonymity Exist If the Relator Decides to Drop the Qui Tam Lawsuit?
After the US government investigates the alleged fraud, it will decide whether to intervene or join the qui tam action. If the US government decides not to join the case, it can drastically reduce the chances of the relator winning the qui tam action. The relator no longer has the full backing of the US government. This effectively admits the case is weak; otherwise, the US government would only join a case that held promise. So when the government concludes it will not join the relator, the whistleblower will sometimes choose to end the qui tam action. However, even though the case may be over, it will no longer be under seal. This means the defendant is likely going to find out who the relator is.
A relator may ask the court to dismiss the qui tam action, but keep it under seal. The court is rarely known to agree to this request since court documents are public record. Any request to keep court documents confidential has a high burden to overcome. However, if the relator can show there have been specific threats (such as the defendant’s CEO telling the entire company that once they find out who the whistleblower is, they will fire them, blacklist them and ruin their family members), then the court may decide to maintain the seal.
Are There Any Protections for Relators?
Essentially, the anonymity protections provided by the False Claims Act are not perfect. Sooner or later, the defendant will learn who the relator is. To deal with these situations, the False Claims Act has an anti-retaliation provision. This prohibits an employer from firing, demoting, threatening, harassing or otherwise discriminating against the relator. If retaliation takes place, the relator may receive reinstatement of their job, back pay, special damages, interest and attorneys’ fees.
Contact Us if You Have Any Questions about Becoming a Relator
Still asking yourself “can I file a Qui Tam lawsuit anonymously”? Find out more about filing a qui tam lawsuit anonymously by contacting our team at Bothwell Law Group.