Friday, August 28, 2015
Texas Bar Litigation Section's Fall 2015 Issue of The Advocate Has Useful, Helpful Articles for Civil Appellate Practitioners.
The Advocate, the publication of the State Bar of Texas Litigation Section, has two outstanding article which should be of interest to followers of this blog: "Permissive Interlocutory Appeals in Texas" by Connie Pfeiffer on page 48 of the Fall 2015 issue and "Which of These Motions Are Appealable" by Jane Webre on page 52.
Sunday, July 19, 2015
The Federal Fifth Joins the Ninth and Second Circuits as Against the Sixth Circuit Deciding that Spilling the Beans in the Beginning of a False Claims Suit Doesn't Necessarily Kill the Suit.
In April 2006, claim-adjuster sister plaintiffs Cori and Kerri Rigsby bring a qui tam action under the False Claims Act, 31 U.S.C. § 3729 et seq., claiming that State Farm Fire and Casualty Company submitted false claims to the United States government for payment on flood policies arising out of damage caused by Hurricane Katrina. The FCA allows private parties to bring a suit for the United States against anyone submits false or fraudulent claims to the government. A winning private party gets part of the recovery. At trial, the Rigsbys prevail on a single bellwether false claim under the FCA. Black’s Law Dictionary calls a “bellwether trial” as a nonbinding trial of a case or set of cases, on issues representative of the common claims of a mass tort proceeding, held to determine the merits of the claims and the strength of the parties’ positions on the issues. It adds that such a trial is often used as a procedural device to encourage settlements. The district court later keeps the Rigbys from conducting further discovery, and denies State Farm’s motions for a new trial and judgment notwithstanding the verdict. Both sides appeal. The issue of importance to federal law as a whole is whether the Rigsbys’ alleged violations of the FCA’s seal requirement independently warrant dismissal. This is an issue of first impression in the fifth circuit. The three other circuits disagree about the effect of a seal violation.
State Farm says that the Rigsbys’ violations of the FCA’s seal requirement independently warrant dismissal. The FCA requires that a “copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the government.” The complaint must be filed in camera and remain under seal until the court orders it served on the defendant. Whether a violation of this requirement compels dismissal presents a statutory interpretation question reviewed de novo. The seal requirements are procedural, not jurisdictional.
In U.S. ex rel. Lujan v. Hughes Aircraft Co., the plaintiff filed her FCA suit under seal but subsequently disclosed, to a national newspaper, the existence of the suit and the nature of her allegations about a government contractor mischarging for its work on a plane’s radar system. 67 F.3d 242, 243–44 (9th Cir. 1995). Two articles were subsequently published revealing that the suit had been filed and relaying the substance of the claims. Id. at 244. The district court dismissed the suit because of the seal violations. Id. at 243.
The Ninth Circuit reversed. Id. at 243, 247. The court determined that no provision in the FCA explicitly authorizes dismissal as a sanction for a seal violation. Id. at 245. The court then looked to the legislative history surrounding the passage of the 1986 amendments to the FCA that added the seal provision, and determined that Congress sought to strike a balance between encouraging private FCA actions and allowing the government an adequate opportunity to evaluate whether to join the suit. Id. (citing S. Rep. No. 99-345, at 23–25 (1986)). The Lujan court concluded that the plaintiff had violated the seal requirement, but remanded with instructions for the district court to evaluate three factors in determining whether dismissal was warranted:
1) the harm to the government from the violations;
2) the nature of the violations; and
3) whether the violations were made willfully or in bad faith. Id. at 245–47.
B. The Second Circuit
The Second Circuit adopted a similar analysis in U.S. ex rel. Pilon v. Martin Marietta Corp., 60 F.3d 995, 997, 999–1000 (2d Cir. 1995).
C. The Sixth Circuit
By contrast, the Sixth Circuit held that any violation of the seal requirement, no matter how trivial, requires dismissal. See Summers, 623 F.3d at 299. The Summers court determined that Congress’s choice of a 60-day seal period already reflected legislative balancing of the interests identified by the Lujan court. See id. at 296. The Summers court also feared that a balancing test would encourage “plaintiffs to comply with the FCA’s under-seal requirement only to the point the costs of compliance are outweighed by the risk” of dismissal. Id. at 298.
While cognizant of the justification for and the merits of a per se rule, we conclude that a seal violation does not automatically mandate dismissal. As the Lujan court recognized and the government stated as amicus in this case, nothing in the text of § 3730(b)(2) “explicitly authorizes dismissal as a sanction for disclosures in violation of the seal requirement.” 67 F.3d at 245. Perhaps more essentially, though, the 1986 amendments to the FCA were intended to encourage more, not fewer, private FCA actions. See S. Rep. No. 99-345, at 1– 8, 23–25. Holding that any violation of the seal requirement mandates dismissal would frustrate that purpose, particularly when the government suffers minimal or no harm from the violation. We therefore embrace the Lujan test for addressing violations of § 3730(b)(2) and turn to the relevant facts here. We review the district court’s application of the Lujan factors, and its election of a remedy for a seal violation, for abuse of discretion. See Lujan, 67 F.3d at
247 (“Imposition of dismissal as a sanction is reviewed for abuse of discretion.”); Pilon, 60 F.3d at 1000.
The Rigsbys filed their initial complaint under seal on April 26, 2006, and served a copy to the government. State Farm alleges that the Rigsbys’ prior counsel then disclosed the existence of the lawsuit to several news outlets by emailing copies of the evidentiary disclosures and engineering reports, sometimes including the case caption. State Farm also alleges that the Rigsbys themselves sat for interviews that culminated in the publication of multiple news stories—including one interview that was the subject of a national broadcast on ABC’s 20/20 program—and notified a Mississippi congressman of their FCA action. Most of these events occurred before the seal was partially lifted on January 10, 2007, to allow the Rigsbys to address related litigation in Alabama. The seal was fully lifted on August 1, 2007.
First, we limit the scope of our inquiry to the period between the filing of the complaint and the partial seal lift. Indeed, while neither party appears to have scrutinized the docket in the related litigation, the existence of this qui tam litigation was revealed there in another party’s public filings within days of the partial seal lift. This effectively mooted the original seal. We also confine our analysis to disclosures of the existence of the suit itself, and do not consider disclosures of the underlying allegations. The seal provisions limit the relator only from publicly discussing the filing of the qui tam complaint. Nothing in the FCA prevents the qui tam relator from disclosing the existence of the fraud.
Having closely reviewed each of the disclosures offered by State Farm that fall into the aforementioned time period and relate to the existence of the FCA suit, the court first concludes that the Rigsbys violated the seal provision, but the opinion agrees with the district court’s determination that none of the disclosures appear to have resulted in the publication of the existence of this suit before the seal was partially lifted. First that the government was not likely harmed. If State Farm was not tipped off about the existence of the suit from the Rigsbys’ disclosures, a fundamental purpose of the seal requirement—allowing the government to determine whether to join the suit without tipping off a defendant—was not imperiled
Second, the violations here—unlike those in many other cases that resulted in dismissal,—did not involve a complete failure to file under seal or serve the government, and were therefore considerably less severe. The fifth circuit acknowledges that some of the above-mentioned publications revealed that the Rigsbys turned over material to federal and state prosecutors. But each reference to those disclosures is in the context of allegations about State Farm misleading policyholders, not the federal government. The distinction is significant because the revelation of possible private or public enforcement to protect policyholders would not alert State Farm to a pending FCA suit.
With respect to bad faith, the district court determined that “there is nothing in the record to suggest that the disclosures in question . . . were authorized by or made at the suggestion of the Relators,” and held that a finding of bad faith or willfulness was unwarranted. There is no indication that the Rigsbys themselves communicated the existence of the suit in the relevant interviews. Was the appeals court to impute their former attorneys’ disclosures to them, however, we would conclude that they acted in bad faith. Even presuming bad faith, the Lujan factors favor the Rigsbys. Although they violated the seal requirement, the Rigsbys’ breaches do not merit dismissal.
The appeals court therefore affirmed the district court’s decision with respect to the seal violations.