Monday, November 14, 2011

Qui Tam Relator's Vague But Real Fears Not Enough to Justify Seal in False Claims Act Case

Just days ago, I characterized courts as being “skeptical” of relators’ requests to seal their dismissed False Claims Act qui tams cases when the government declines to intervene. See 10/31 entry.   Skepticism, however, is an understatement.  As seen in this recent case, the relator is treated like any other litigant, and the Court dismisses her vague, though real, fears of  possible retaliation and never being able to find work as a result of having filed a qui tam suit as insufficient to justify maintaining the seal of a dismissed case.

In US ex rel Ruble v. Skidmore, 2011 WL 5389325 (S.D. Ohio), issued 11/8/2011, the Court again denied a relator’s request to continue the seal of her qui tam suit which she had brought against her former employer, an orthopedic surgeon, and which she now sought to dismiss since the government declined to intervene.  In pleading with the Court to continue the seal of her case, the relator expressed her fears that she would be ostracized for having filed suit, saying:  “If my role in this case becomes public, I will be forever be viewed with suspicion and distrust in the local medical community  . . . . . [which is] quite small and tight knit. . . . I believe my job prospects . . . would be substantially curtailed . . . and doctors who know I reported one of their colleagues to the Government will be leery of trusting me.  . . . .  I have no other professional training . . . .  . It is imperative that I be able to continue working in this medical community.”  The relator went on to add that her husband was elderly and unable to work and that she feared “physical retaliation” from her former employer because she had received numerous “hang up” calls and once had been pushed by her former employer’s wife.

The Court denied her request to continue the seal as well as her alternative request to redact her name if the complaint were unsealed.  The “primary purpose,” the Court explained, for sealing a complaint is to permit the government to decide whether to intervene, and the False Claims Act “expressly contemplates” the unsealing of the complaint.  Only the “most compelling reasons,” the Court noted, “can justify non-disclosure of judicial records,” and “harm to reputation” is not one of those reasons.  The Court acknowledged that the relator’s ability to practice her professional locally does “depend[] in part on her reputation in the local community,” but “[e]ven under these circumstances . . . Relator has not demonstrated her privacy interest is sufficient . . .”

I do not mean to harp on about these cases, but I am truly surprised at these opinions.  Readers, is this how relators are treated in your districts?  For those readers who represent qui tam plaintiffs, in light of these cases are you having to counsel your relator clients more now about the possibility of their complaints becoming unsealed even if dismissed?

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