Whistleblowers cannot rely on information that has be publicly disclosed when filing a claim under the False Claims Act. Most often, successful whistleblowers are the original source of the information and are thereby entitled to receive a reward of up to 30% of any recovery.
Below are two recent cases addressing the public disclosure bar in qui tam case brought under the False Claims Act.
Public disclosure bar resulted in dismissal of a qui tam lawsuit that alleged an environmental service received pays from the government for performing fake testing, because same information was already disclosed in two prior federal criminal prosecutions. Chen v EMSL Analytical, Inc. (2013, SD NY) 966 F Supp 2d 282.
However, in United States ex rel. Carter v Halliburton Co. (2013, ED Va) 973 F Supp 2d 615, the public disclosure bar did not require dismissal of a whistleblower’s lawsuit. The court ruled that even though fraud allegations had been publicly disclosed before the relator’s complaint was filed, the relator did not base the action on the previous public disclosure but instead relied on his own independent knowledge.