Relators historically have found it difficult to remain anonymous under the FCA. Statutory tweaks in the Patient Protection and Affordable Care Act of 2010 (ACA), known colloquially as Obamacare, have made the playing field more favorable for one particular tactic: the organizational relator
This article by TELG managing principal R. Scott Oswald was published by The Federal Lawyer on December 1, 2016. The full article is available at The Federal Lawyer.
Shielding Relator’s Identity in Qui Tam Actions: The Landscape After ACA Changes to the False Claims Act
“No one can know that I’m the whistleblower, or I’ll get fired. I’ll be blackballed in my industry—I’ll never get another job!” These words will sound familiar to any lawyer representing whistleblowers who expose fraud under the False Claims Act (FCA) or other rewards statutes. Such clients often fear blowback from employers and opprobrium from their peers. The inevitable question arises: “Can’t you hide my identity?”
Congress understands the risks taken by whistleblowers, and the FCA prohibits workplace retaliation while offering the prospect of a monetary reward. But profiting from a FCA claim is far from guaranteed, and the process usually takes years. And while discrete cases of retaliation can be remedied, it’s much harder to quantify—let alone dispel—the shadow that a public lawsuit may cast on a whistleblower’s professional standing.
Relators’ counsel have tried various tactics to shield their clients’ identities from the eyes of Public Access to Court Electronic Records (PACER) and internet search engines. Efforts have included using pseudonyms such as John Doe, requesting redaction or permanent seals, and forming organizations to mask relators’ identities. All have met with limited success.
In this article, we’ll discuss why relators historically have found it difficult to remain anonymous under the FCA—but also how statutory tweaks in the Patient Protection and Affordable Care Act of 2010 (ACA), known colloquially as Obamacare, have made the playing field more favorable for one particular tactic: the organizational relator.