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Gurumurthy Kalyanaram Reports on U.S. Government’s Compelling Interest in a False Claims Act

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One of the serious debates in FCA lawsuits is the purpose of the sealing provision. ACLU filed a lawsuit on this matter in the Fourth Circuit. This essay by Gurumurthy Kalyanaram reflects on this important public issue, which is anchored on competing public v. private interests.

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Gurumurthy Kalyanaram Reports on U.S. Government’s Compelling Interest in a False Claims Act

  1. 1. Gurumurthy Kalyanaram Reports on U.S. Government’s Compelling Interest in a False Claims Act http://gurumurthykalyanaramblog.wordpress.com/ One of the serious debates in FCA lawsuits is the purpose of the sealing provision. ACLU filed a lawsuit on this matter in the Fourth Circuit. This essay by Gurumurthy Kalyanaram reflects on this important public issue, which is anchored on competing public v. private interests. It is now well established that the United States has a compelling government interest in protecting the confidentiality and integrity of ongoing fraud investigations. For that reason, Congress included the seal provision in the FCA. Under the provisions of the FCA, only the government can determine if the suit needs to remain under seal, or can ask the court for permission to reveal the suit. 31 U.S.C. § 3730(b)(2), (3); S. Rep. No. 99-345, at 24 (1986) ("allow[s] the Government an adequate opportunity to fully evaluate”). In a very recent decision by the U.S. Court of Appeals (2nd Circuit), Grupp, Moll v. DHL, Case No. 12-3829 (2nd Cir. 2014) (Winter, Cabranes, Livingston), the Court emphasized the policy reasons for the sealing requirement in a False Claims Act (“FCA”) case: “to allow the government time to investigate the alleged false claim and to prevent qui tam plaintiffs from alerting a putative defendant to possible investigations.” The Court agreed with the U.S. government’s position that the FCA sealing provision is fundamental and rejected any time limit, including an 180-day limit, to the provision, because such limitation would “undermine both the FCA’s seal provisions and statute of limitation.”
  2. 2. The decision reaffirmed the government’s compelling interest in protecting the confidentiality and integrity of ongoing fraud investigations noted in prior decisions. ACLU v. Holder, 673 F.3d 245, 253 (4th Cir. 2011); U.S ex rel. Pilon, 60 F.3d 995, 998-999 (2d Cir. 1995) (secrecy allows the government to conduct the investigation without “tipping off” the defendant).

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