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State Farm V. Rigsby and the Difficulty of Breaking the Court Seal

It is hard to believe the Supreme Court decided to hear another big False Claims Act case this year but they did. The Court held Oral Arguments in State Farm v. Rigsby on November first.

We will be providing a more in-depth analysis of the case later, but I was struck by one thing the Chief Justice said during the argument though that merits a quick consideration.

The whole case comes down to the Defendants in the underlying action, who lost a jury verdict, wanting the entire case thrown out because attorneys for the Plaintiff-Relator apparently violated the Seal of the court.  The attorneys (who no longer represent the Plaintiff-Relator’s) sent information to the press.

First of all, the seal provisions should be respected and we tell clients not to confirm the existence of the case or discuss it at all. Nobody is arguing that.

The defendants were shooting for a per se rule which would end or at best require the government to re-file a case if the seal is broken no matter how or under what circumstances. We’ll go into this in greater depth in future emails.

I was struck by this exchange between Teginder Singh arguing for the Plaintiffs and the Chief Justice.

TEGINDER SINGH: The last thing that I want to —I want to point out, and the, you know, if there are no further questions I’ll rest, is that you know, State Farm says that the Statue asks very little of relators. That is just patently false. My clients spent a decade in these careers before they spotted grievous fraud against the government. They blew the whistle.  They lost their jobs.

CHIEF JUSTICE ROBERTS: I think that it honestly asks very little of them when it comes to the seal requirement. Just don’t disclose it.

TEGINDER SINGH: So

CHIEF JUSTICE ROBERTS: That’s not asking a lot.

Mr. Singh wisely chose not to fight with the Justice who did not seem all that sympathetic to the Defendant’s position in general despite this. I will rush in here though.

First of all, the attitude that relators don’t have to do much as a general proposition comes from Defendants all the time. Second, and with respect to the seal particularly, client adhere to the seal. They are extremely careful about it. But saying it is not a big deal is not true.

The law asks whistleblowers, those who come forward and fight about wrongdoing to come forward only in the specified ways that are allowed by its procedures. First tell your story to your lawyer, then file your story with the Court, and then say nothing for years.

Remember this story may not just be about somebody else or about wrongdoing but also may be something that directly affects the whistleblower’s life and likely was the most important thing in the whistleblower’s life.

The whistleblower indeed may have gotten fired, but now having filed a case cannot really talk about why they spoke up and how it is that they got fired.

Yes, there are harder things about being a whistleblower, getting fired and losing your career as Mr. Singh pointed to is hard. Not being able to talk about all that while a person waits for the government to act is not easy either.

Whistleblowers must do that to be successful, but I respectfully disagree with the Chief Justice that it is not asking a lot.