A frequently voiced, and often well-founded, concern of whistleblowers is maintaining their confidentiality. While whistleblowers can expect their attorneys to maintain their confidentiality, and while False Claims Act complaints are filed under seal, protecting whistleblowers' confidentiality for at least 60 days (31 U.S.C. § 3730(b)(2), it is very likely that, sooner or later, whistleblowers' identities will be made public. If the Government intervenes in a False Claims Act case, the seal will be lifted and the whistleblower's allegations will become publicly available. Similarly, if the Government declines to intervene in a False Claims Act case, and the whistleblower decides to continue to prosecute the case without Government involvement, the seal will be lifted, again making the whistleblowers' allegations public.
But what if the Government declines to intervene in a False Claims Act case, and the whistleblower decides not to proceed with the case? Can the whistleblower dismiss the case while it is still under seal, and prevent their identity and allegations from becoming public information? A federal district court for the District of Massachusetts recently rejected a whistleblower's attempt to do just that.
In United States ex re. Wenzel v. Pfizer, Inc., 2012 WL 3194481 (D. Mass. Jul. 25, 2012), the whistleblower alleged that Pfizer had illegally marketed Zyvox for off-label uses. After the Government declined to intervene in the case, the whistleblower sought to voluntarily dismiss his complaint, and asked the court to keep his case under seal after the dismissal so that his identity would remain confidential. The Government objected to the whistleblower's request.
The court explained that there is a "general rule in favor of unsealing" False Claims Act cases after the Government conducts its initial investigation and decides whether to intervene. That general rule, however, "is subject to the privacy rights of participants and third parties," and if, for example, "particularized evidence demonstrates that the unsealing of a qui tam complaint would threaten a litigant's personal privacy or safety, courts have the discretion to maintain a complaint under seal . . . and to unseal a complaint with redactions." Nonetheless, most courts have held that "a relator's general fear of retaliation is insufficient to rebut the presumption of public access," in part because retaliation concern are mitigated by the False Claims Act's anti-retaliation provision, 31 U.S.C. § 3730(b)(2).
Despite the whistleblower's concerns about having his credibility attacked, and being stigmatized and ostracized by the healthcare industry, in which the whistleblower and his wife were still employed, the court found the whistleblower's concerns were merely "conjectural," and that he provided "no evidence of any specific threat of retaliation by any particular individual or company." Accordingly, the court held that the whistleblower failed to present privacy concerns sufficient to override the presumption in favor of unsealing the case to allow public access. Similarly, the court rejected the whistleblower's request to have only portions of the court record redacted to conceal his identity, because doing so would have kept a significant portion of the record sealed and would have prevented the possible application of the False Claims Act's public disclosure bar to future, similar suits against Pfizer.
While it is possible, in some very limited circumstances, for a whistleblower to maintain anonymity after the dismissal of their claim, this case serves as a recent reminder that whistleblowers should proceed with the expectation that their whistleblower status will eventually be revealed to the public.