Rule 9B: Pleading Requirements in Different Courts

The interpretation of the Rule 9B pleading requirement in regard to False Claims Act cases differs from judge to judge. The reality of this is tricky in the sense that this is probably not something that one can find in a law book. The fact is judges see a case that is supported by the United States government and the United States government having investigated the case is likely to also be able to produce more facts than a whistleblower and their whistleblower lawyer on their own. These cases are extremely fact intensive and so it may not always be possible to tell from a previous ruling how a Court may act on this matter.

For whistleblowers acting on their own, without the added benefit of a government investigation and additional facts, that burden is much greater and harder to maintain. Therefore, you see a lot of cases dismissed on rule 9B grounds when the government declines to intervene.

Requirements

While requirements may technically differ from circuit to circuit as to what 9B is, because it’s such a factual based analysis, judges have a great deal of leeway to determine what 9B means. Our firm once had a case that had a great attorney who handled the appeals before the Circuit in which it was dismissed ultimately for a lack of rule 9B. The court said they were dismissing it because our whistleblower was neither an outsider nor strictly speaking an insider to the action, which left me wondering in what metaphysical space my whistle blower actually was living because if he wasn’t an outsider and he wasn’t an insider, I’m not exactly sure where he was.

The court nonetheless dismissed the case on that basis. That was a wrong decision by the court. I don’t know if the Court would have acted that way had the government intervened either. These are really fact based analysis and as a result courts can make their own determinations as to rule 9B a great deal of the time.

The Chilling Effect of Rule 9B Interpretations

It can bring a chilling effect. Certainly it can discourage whistle blowers from bringing cases that are declined. It can make it very hard to maintain an action if you look at a string of cases saying absent government investigation and additional facts, the court will likely dismiss. That’s one of the things that deters, and rightfully so, counsel from telling clients look you have a declined case but let’s go marching up the hill anyway and try and pursue the case.

It’s just an added burden and it serves to discourage bringing cases before the court. To be fair a defense counsel would say, fraud or certainly false claims and the false claims act with its trouble damages provisions, is not the type of case that once should bring lightly ever.

Heightened pleading requirements may be appropriate. I just happen to think that it’s gotten too difficult for whistle blowers to overcome that burden and get a day in court and so I think it’s gotten a little strenuous. But that’s an ongoing argument between plaintiffs, lawyers and defense counsel with the government sort of in the middle.