Reining in the Rogue Squadron: Making Sense of the "Original Source" Exception for Qui Tam Relators
2012; Washington and Lee University School of Law; Volume: 69; Issue: 1 Linguagem: Inglês
ISSN
1942-6658
Autores Tópico(s)Law, Rights, and Freedoms
Resumoqui tarn provisions offset inadequate law enforcement resources and encouraged 'a rogue to catch a rogue' by inducing informers 'to betray [their] coconspirators.'1Christopher Alexion has provided me a welcome opportunity to revisit Civil False Claims Act (FCA)2 and its qui tarn provision. I have long found qui tam provision problematic. However, in Open Door, Not Floodgates, Mr. Alexion provides an insightful and well-organized overview of public disclosure provision that calls for a fresh look at how courts should enforce this jurisdictional bar, in order to curb abusive prosecution this statute invites.3Alexion focuses on struggle federal courts and Congress have had with one of statute's most important protections against parasitic litigation by qui tarn relators-the jurisdictional public disclosure bar. He offers a proposal to narrowly construe most recent revision of this restriction, hoping, I believe, to head off yet another spate of contradictory and irreconcilable constructions of FCA statute. Further, Alexion's proposal is directed, as title to his Note suggests, at supporting Congress's most recent attempt to limit number of specious lawsuits qui tarn plaintiffs bring, while protecting rights of worthy private litigants who prosecute fraud on behalf of government. Mr. Alexion's efforts are matched against government's commitment to an aggressive prosecutorial strategy built on premise that qui tarn provision allows state to use a rogue to catch a rogue.4 The upshot of this policy is that vast numbers of qui tarn rogues now mobilized in fight against fraud have, I fear, grown as powerful as fictional Rogue Squadron from Star Wars movies, books, and comics. However, unlike their science fiction counterparts, evidence suggests that targets of qui tarn rogues are not always evil empires, qui tarn rogue's aim is not always sharp and true, and these rogues are not always the best pilots and best fighters.5 In contrast to fictional Galactic Empire heroes, all too often, qui tarn rogues are just plain rogues. The basic idea behind public disclosure bar is to stop unworthy rogues before they do reckless and expensive harm, but to allow truly helpful ones to proceed.The public disclosure bar operates to exclude qui tarn relators from recovering damages under FCA if they do not disclose fraudulent conduct that was previously hidden from public view. The exception to public disclosure bar makes room for qui tarn relator who is, in fact, informant behind public disclosure, to recover her share of damages recovered under FCA. Mr. Alexion has identified three different approaches courts have taken to construing original source exception to public disclosure bar.6Mr. Alexion calls First and Fourth Circuits' rule because plaintiffs can qualify as original source of a public disclosure, and thus overcome jurisdictional bar, more easily under this rule than under any other.7 In First Circuit, Permissive Approach turns on timing of relator's disclosure. That rule bars recovery to relators who fail to disclose facts of fraud prior to filing their qui tam lawsuit. From a timing perspective, plaintiffs do not have to share their knowledge of fraud with government before relevant facts become public from other sources. In United States ex rei. Duxbury ?. Ortho Biotech Products, L.P.,8 for example, United States Court of Appeals for First Circuit concluded statute only requires that a relator provide his or her information prior to filing of qui tam suit.9 Thus, fact that relator Duxbury filed his qui tam action hot on heels10 of a master consolidated, multi-district complaint containing similar allegations, did not bar his claim. In Fourth Circuit, Permissive Approach turns on content of qui tarn disclosure. …
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