Monday, October 31, 2011

Courts Increasingly Skeptical of Requests to Continue Seal of Dismissed Qui Tam

In my experience defending qui tams suits in Florida's Middle District, courts routinely agreed with the government and relators to keep sealed those False Claims Act qui tams that were dismissed or settled while under seal.  Relators were sacrosanct; I never heard of the government opposing a relator's request to keep a dismissed complaint under seal, let alone oppose the relator in instances where the relator claimed that they feared retaliation. Finally, in my experience, courts have most often deferred to the government when it sought to maintain the seal over its motions for extension of time to investigate qui tam complaints.  (Is this your experience, readers? Please tell us about the experience in your districts.)
As shown by several recent opinions in the last several months, however, courts are taking an increasingly skeptical view of requests to continue the seal  both of dismissed qui tam complaints and of the government's motions for extension to investigate. See US ex rel Danner v. Quality Health Care, Inc., (D. Kan. 10/18/11);  US ex rel Durham v. Prospect Waterproofing, Inc., (D. D.C. 10/4/11); US ex rel Littlewood v. King Pharmaceuticals, Inc., (D. Md. 8/29/11), US ex re Rostholder v. Omnicare, (D. Md. 7/28/11).  In these decisions, courts  unsealed qui tam complaints in the face of claims by relators that they feared retaliation from employers. In turn, these opinions reflect an attitude that courts will no longer defer to claims by relators or the government that they will be prejudiced or harmed if qui tam pleadings are unsealed. See FCA Alert for a discussion of Danner and Durham.

The most thorough case addressing sealing and the request of a relator and the government to keep portions of the qui tam court file under seal is  US ex rel Littlewood v. King Pharmaceuticals, Inc. which can also be found at 2011 WL 3805607.