March 31, 2016

New Clarity On The Public Disclosure Bar For Whistleblowers — Be Sure You Make The Grade

By Gordon Schnell (Published in Law360)

There continues to be some uncertainty on just how far the so-called public disclosure bar reaches to prevent whistleblowers from bringing suit under the False Claims Act. It is a subject filled with such nuance and fact dependency there may never be complete clarity on how any one case scenario may play out. But thanks to a string of recent court of appeals decisions—four in the past month, from the Fourth, Sixth, Seventh and Ninth Circuits—there is at least some insight to be gleaned on this chronic whistleblower concern.

That is, that courts are not only guided by the statutory strictures of what constitutes a public disclosure sufficient to raise the bar and what does not. They also take pains to stay within the boundaries of the rule’s principal purpose; namely, encouraging whistleblowers with original and helpful inside information, and barring those without — the so-called “parasitic” suits brought for the sole benefit of the whistleblowers themselves. Indeed, from this recent stream of decisions, it may be that choosing the right side of the divide is the driving force in the courts’ ultimate assessment of how and when to apply the bar. Click here for full article.

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