Noted whistleblower lawyer and syndicated blogger Brian Mahany explains why courts “seal” whistleblower cases and what it means for whistleblower protection.
TEXT TRANSCRIPT OF FALSE CLAIMS ATTORNEY BRIAN MAHANY ON WHY A COURT WILL SEAL A WHISTLEBLOWER COMPLAINT IN FALSE CLAIMS LAWSUITS
Many clients are concerned about their privacy and seek guidance on the court’s sealing process. The False Claims Act requires that whistleblower cases be filed under seal. That is a fancy way of saying these claim lawsuits are secret and cannot be discussed with anyone except government prosecutors and agents.
GOVERNMENT INVESTIGATORS WORK WHILE LAWSUIT IS SECRET
The purpose of the seal is to give the government time to investigate your concerns of wrongdoing. By sealing the case, the government hopes to avoid tipping off the wrongdoers.
While a case is sealed, neither you nor we can discuss the case with anyone but the government. That means you can’t tell co-workers, friends or even family. Even the fact that you filed a lawsuit can’t be disclosed. (The seal isn’t absolute, however, and at least one court says a whistleblower can disclose the case to his or her spouse.)
SEVERE CONSEQUENCES IF WHISTLEBLOWER TALKS ABOUT CASE
What happens if the seal is broken? If someone breaks the seal, the court can sanction them. If you as the whistleblower breach the seal and the court determines that your actions were intentional or if the breach hurts the government’s investigation, your ultimate award could be reduced or even eliminated.
The seal is only good for 60 days but judges routinely extend the seal for months or even years. Until the government completes its investigation, the case usually remains sealed.
SEALING A FALSE CLAIMS LAWSUIT PROTECTS CLAIMANT TOO
The flipside of the sealing order is that your status as a whistleblower remains secret as well. If you are looking for a new job, that could be a big benefit.
Ultimately, when the government has completed its investigation, the court typically unseals the case. Only then can you discuss the case. If the case isn’t going to proceed, often the unsealing receives no publicity and is a non-event. If we or the government pursue the wrongdoer, however, the press may pick up the story.
Of course, we will help you understand the do’s and don’ts of what can be disclosed and have access to a media specialist should the case be large or generate public interest.
- Brian Mahany, False Claims Act Attorney & Author CONTACT INFORMATION: [hidden email] 414.704.6731