In our last blog post we discussed who is a whistleblower and how one can file a lawsuit to recover damages from a wrongdoer on behalf of the U.S. government. This post will focus on common obstacles to filing a qui tam lawsuits: the “public disclosure bar,” the “first-to-file rule,” and observing the statute of limitations. These doctrines may not apply to every case. You or your experienced whistleblower attorney should keep all of these doctrines in mind because all three doctrines become increasingly important as more time passes.
Public Disclosure Bar
A relator cannot file a complaint alleging wrongdoing if “substantially the same allegations or transactions” were already publicly disclosed through official proceedings or in the media. In plain English, a relator cannot file a qui tam lawsuit if allegations of wrongdoing have already been made public, even though he or she has personal knowledge of the allegations.
A relator can still file a qui tam lawsuit despite the “public disclosure” doctrine if the relator is the “original source” and (1) voluntarily disclosed information to the government prior to the public disclosure or (2) voluntarily disclosed to the government his or her knowledge that is “independent of and materially adds” to the information that has been publicly disclosed. Let’s deconstruct the original source exception. Despite the public disclosure bar, a relator can still file a qui tam lawsuit if he/she voluntarily disclosed information about the wrongdoing to the government before the information became public. Or, a relator can file a qui tam lawsuit and overcome the public disclosure bar if the relator voluntarily disclosed information to the government and that the information is “independent of and materially adds to” the publicly disclosed information.
“First to File” Rule
The relator who is first to file his/her claim gets preference in court, assuming there are no related matters pending. Courts have interpreted “related” to mean similar allegations of fraud. Since fraud related to government schemes can be wide-ranging, sometimes more than one person or whistleblower will attempt to sue under the False Claims Act (FCA).
Before filing a qui tam action, it is essential to determine if “related” actions may be pending. This may be difficult to do so, since cases may be pending under seal. Still, experienced whistleblower attorneys will investigate a potential claim to determine if another claim may have already been brought.
Statute of limitations
The FCA’s statute of limitations runs six years from the date of the violation or three years from the date that the United States should have known about the violation. The FCA also has a statute of repose which bars cases brought more than ten years from the date of the violation.
Stephen Danz & Associates have decades of successfully representing whistleblowers. Give us a call for a free consultation if you think you may be a whistleblower or have witnessed fraud against the government in your workplace.