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Protected Conduct Under the False Claims Act Does Not Require a Showing that Plaintiff Knew About the Act

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The U.S. District Court for the District of Massachusetts held that an employee is protected from retaliation under the retaliation provision of the False Claims Act when reporting any activity that reasonably could lead to a False Claims Act (FCA) suit even when the employee is completely unaware of the FCA.  Plaintiff Christopher Gobble was a sales representative for Forest Pharmaceuticals who complained to supervisors about the company paying kickbacks to doctors who, in return, prescribed Forest Pharmaceutical’s products to patients.  Gobble reported the kickbacks because he knew they were unlawful but he did not realize at the time he made the disclosure that the kickbacks could lead to a qui tam action. Judge Gorton rejected the employer’s position that Gobble failed to plead that he engaged in protected conduct, holding:

“Protected conduct” is to be interpreted broadly and the First Circuit defines it to mean

activities that reasonably could lead to an FCA suit[,] in other words,  investigations, inquiries, testimonies or other activities that concern the employer’s knowing submission of false or fraudulent claims for payment to the government.

United States ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 237 (1st Cir. 2004).  A plaintiff, however, need not have known that his actions could lead to a qui tam suit under the FCA, or even that a False Claims Act existed, in order to demonstrate that he engaged in protected conduct. Id.

This opinion confirms the broad scope of protected conduct under the FCA.  Click here for the court’s full opinion.

The whistleblower lawyers at The Employment Law Group® law firm have experience protecting whistleblowers and litigating qui tam actions brought under the False Claims Act.  For more information about TELG’s False Claims Act Practice, click here.

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