Can a Whistleblower Remain Anonymous When Filing a False Claims Act Lawsuit?

Most whistleblower clients or potential clients that approach a Qui Tam Attorney for advice as to whether or not to file a False Claims Act lawsuit are concerned with being publicly identified as a whistleblower.  Most whistleblowers would prefer to remain anonymous, report the fraud, be eligible for a large award and stop the wrongful conduct involved without anybody knowing they were the whistleblower.  Unfortunately, guaranteeing such privacy and lack of public exposure is often difficult or impossible. While there are many tactics, and we at Begelman & Orlow have utilized to maintain as little public identity of our False Claims Act clients as possible and have done so on many occasions successfully, such privacy and exclusion from public knowledge is often not possible. With the potential for great rewards and by doing great things such as being a whistleblower and reporting fraud against the public through its government, the public sometimes becomes aware of the whistleblower’s identity. Part of this problem is that in the United States there is a policy of openness to the public and public knowledge of the cases being litigated in it’s courts.  Filing cases in secret or “under seal” is not a favored policy in our country.

A lack of openness of our court proceedings is not favored because the public’s right to know” is a fundamental principle of our American democracy and court system.  Trials in secret are repugnant to our free and open society. In the middle ages, there used to be trials in secret. Charges were brought by what was known then as the Star Chamber where freedom and property were removed from citizens and taxpayers in secret.  Our revolution was fought amongst other issues to maintain a free and open court system.

Under the False Claims Act, however, the policy of openness is temporarily postponed so that the government, whose name the lawsuit is filed for and who is the true party in interest can investigate the allegations before the allegedly corrupt defendant knows about it and before there is in fact public disclosure that that the government, whether it be State or Federal, can decide if they want  pursue the case – just as you may be doing right now, in private.  The government attorneys, if a Qui Tam False Claims Act case is filed even have the power to move before the Federal Court to dismiss the False Claims Case while it is still under seal if, for example, it threatens national security, public safety or would expose you the whistleblower to certain types of harm.  That is why, under the False Claims Act, your case must be filed under seal after initial disclosure to the government. That seal initially lasts sixty days but is usually extended with court permission for months or even years while the government investigates your claims and decides whether to intervene in your action and take the lead in prosecuting your case.  Since the law is a Qui Tam law, if the government declines to intervene you have a right to pursue the case in the name of the government and the case will come out of seal and be made public.

Although your privacy and identity is kept secret during the seal, the seal is for the benefit of the government and not the whistleblower. Once the government decides how it wants to proceed, since public disclosure is the policy of the courts of the United States, there is no need for the seal and your identity will be made public.  Nobody may notice your case and your identity with it or they may.

So what can we do to help protect your identity from being made public? While nothing we do is guaranteed to keep your identity private and if the case is in fact prosecuted by the government (intervened) or if you decide that you wish to proceed after declination in the name of the government since we have a court system that favors the publics right to know and disfavors cases litigated in secret, there are things that an experienced Qui Tam attorney can do to limit your exposure or even keep your identity under seal.  One of those strategies is to file your case as a “John or Jane Doe” pleading.

In many states, plaintiffs, those that bring a lawsuit to protect their rights or seek redress for harms done to them, can name defendants as “John Does or Jane Does” to signify that the identity of the wrongdoer is unknown.  Not all states allow this pleading, but New Jersey does and Pennsylvania does not. The Federal Courts generally do not allow such pleadings of “John Doe” defendants. We for example in our New Jersey cases often list up to ten “John Does” or even”John Doe Entities”.

Since initially a False Claims Act pleading is filed in secret, under seal, a whistleblower can ATTEMPT to file his or her claim as a “John Doe” Relator, after full disclosure of the whistleblowers identity to the governments involved on whose behalf the lawsuit was filed.  Since the defendant does not even know that they have been named or sued under the False Claims Act while the seal is in place, there is nobody but the court itself or the government who could object to such a “John Doe” pleading.  Once the case is unsealed and pursued the John Doe would then have to be revealed or named if the case was to be moved forward.

Sounds perfect?  Well maybe it is not the oasis of protection you were looking for and it may just be a mirage.  First the Court may reject your pleading and by doing so may affect your rights under what is called the first to file doctrine.  You can read about that doctrine on our web site under “Why waiting can hurt you”. Under that doctrine only the first to file an allegation under the False Claims Act of a particular fraud as to time and substance is entitled to proceed with their case and collect an award.  Additionally by filling as a “John Doe” you may only being getting protection of your identity while the case is under seal and not when it is public and therefore for the reasons stated below you may be causing more harm than good for your self and the chances of having a successful claim and receiving an award.

The shortest way to success in a Qui Tam False Claims Act case is get the government, the United States or any of the States who have False Claims Acts to intervene and take over your case. First impressions are  most of the times paramount. When you file your case as a “John Doe” you may be sending a signal that you do not believe in your own case.  Additionally your Relators Share, your reward, is measured and determined by your cooperation and the risks you took to your reputation and employment by coming forward. Congress as does the Department of Justice recognized the career risks you are taking and the sacrifices you are making for your country and they provide for  cash rewards for those sacrifices.  When you file as a “John or Jane Doe” you are sending a message that you are not willing to make that sacrifice or you do not believe in your case.  Generally it is not the best idea to file as a John Doe, it does not  always provide  confidentiality whistleblowers may seek and may leave a bad impression on the government and impact your Relator’s share.  It may risk other legal consequences that could negatively impact your case.  This is another reason that it is very important to hire an experienced Qui Tam whistleblower attorney and not just an employment lawyer who also does whistleblower retaliation cases. Begelman & Orlow is amongst the country’s most experienced Qui Tam lawyers and we also represent clients who are being retaliated for whistleblowing.

There are other ways we at Begelman & Orlow protect our clients who, after government declination, do not want to go forward as a Qui Tam litigating on behalf of themselves and the government. We have moved to amend our complaints to make them John Doe complaints and have been successful.  We have sought to keep the case under seal permanently and if our clients are in certain positions like still being employed by the defendant corporation or other unique situation those requests have been granted and even when complaints have been unsealed and not prosecuted as Qui Tam complaints, nobody has noticed the filing and therefore nobody notices who the whistleblowers identify is, in that unsealed but unnoticed case.

We have other tools in our toolbox, such as Corporate Relators, all with their own benefits and risks.  We pride ourselves at thinking outside the conventional box and obtaining thereby the best results for our clients.

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