The Qui Tam Blog

 By: Joel Androphy, Rachel Grier, and Stephanie Gutheinz         

A district court in the Southern District of Texas recently held that nothing in the text of the FCA or its legislative history prevents employment-related retaliation claims from being arbitrated under a valid and enforceable arbitration agreement.  Under the Federal Arbitration Act, a valid agreement to arbitrate certain disputes is valid and enforceable unless Congress has precluded arbitration of the statutory right at issue.  The relator argued that the FCA precludes arbitration of retaliation claims because arbitration of such claims would allow defendants to immunize themselves against relator-initiated claims of FCA violations, undermining the purpose of the FCA to protect whistleblowers.  The relator further argued that such arbitration proceedings could constitute public disclosures, thereby unfairly triggering the public disclosure bar.  The court reasoned, however, that relators can avoid this issue by filing their retaliation claims with or after the qui tam claims.  The case is United States ex rel. Cassaday v. KBR, Inc.

 By: Joel Androphy, Rachel Grier, and Scott Braden

Whistleblowers should be mindful that disclosures in foreign periodicals can be considered public if the periodicals are regularly read by an international community. In a recent opinion, a U.S. District Court decided that an article in a foreign scientific journal was a public disclosure, given the international nature of the scientific community. The court reasoned that the foreign publication of a scientific article does not make it “any less accessible to the American public than if it were published in a scientific journal located in the United States.  The court also clarified that not all foreign publications are public disclosures, such as an ordinary article in a Greek newspaper. In these instances, there is no public disclosure when an article is published in a different language in a foreign publication not regularly read by an international community. The case is USA ex rel. Radcliffe v. Purdue Pharma L.P., a court in the Western District of Virginia.