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Sixth Circuit Reverses Dismissal of False Claims Act Retaliation Claim

On May 13, 2008, the Sixth Circuit reversed a lower court’s dismissal of a False Claims Act (“FCA”) retaliation claim.  In the U.S. ex rel. Marlar v. BWXT Y-12, LLC, No. 07-6051 (6th Cir. May 13, 2008) opinion, the Sixth Circuit rejected the district court’s narrow interpretation of the scope of protected conduct under the False Claims Act, holding that a plaintiff need not demonstrate that her disclosures clearly alerted management that she intended to pursue a qui tam action.

The district court held that Marlar did not engage in protected conduct under the retaliation provision of the False Claims Act in that her disclosures did not alert her former employer that she intended to bring a qui tam action.  The Sixth Circuit reversed, holding that Marlar’s disclosures to management about BWXT receiving “illegal” “large incentive payments” under its contract with DOE “would have given [the defendant] reason to believe that she was contemplating a qui tam action,” and therefore she could prove that she engaged in protected conduct.



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