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Bondi’s Blunder: The Dangerous Precedent of Dismissing a Whistleblower Case

*Below Tony Munter discusses a Whistleblower Case in Florida, he is not however licensed to practice in the state of Florida.
Here’s something that is scary, but thankfully is not happening very much or likely to happen outside of the State of Florida.

Let me say to whistleblower Zoltan Barati, attorneys David Moye, Gary Farmer Jr., Mark S. Fistos, and Gary Farmer Sr., and anyone else who stood up and is fighting the good fight in this case, I feel your pain and appreciate your struggle against this.

Pam Bondi the Attorney General of the State of Florida made a decision to dismiss a False Claims Act Case filed under the Florida False claims Act — not just decline to intervene, but actually to dismiss the case. After Barati brought suit on behalf of Florida against Motorola for False claims violations, the State of Florida moved against the whistleblower to stop it.

It is strange even to look at captions for the pleadings in this case and see the Attorney General joining the side of the Defendants on a whistleblower case against the whistleblower bringing a case for the State. “The State of Florida” is effectively arguing against its own best interest under this action.

You have to ask yourself, why? Even assuming that the Florida Statute allows this, which the First District Court of Appeal ruled it does, why would any attorney general take such an action?

A judge can dismiss a case if he or she thinks it is truly frivolous.  There are all kinds of motions which defense attorney’s can and do file to fight false claims act cases all the time and in the event the case really is frivolous they work.

Plaintiff-side false claims Act lawyers aren’t going to pursue a case in litigation out of seal for years (this case was filed in 2009 and here we are seven years later) unless they really believe there is a case on the merits.

They can be wrong, but the idea that any plaintiff’s lawyer, let alone the attorneys handling this case, would go to go into court and fight a major corporation for seven years without at least a good faith belief in the merits of the case is crazy.

Indeed, in this case the trial judge had denied defense motions for summary judgment and a trial was at hand indicating that there were at least issues worthy of a court and a Jury’s time to weigh. Yet, the Attorney General insisted on ensuring the defeat of the claims, which could have rewarded her Florida constituents.

What Florida Attorney General Pam Bondi's decision means for other whistleblower casesIn this situation a government official doing absolutely nothing would have been far better for her constituents and cost them nothing. Since the private attorneys were handling the case, if they won the whistleblower and the attorneys would have obtained a larger share of the recovery, but they only get anything upon obtaining results for Florida.  In any event, there would have been no cost to the state to allow the case to proceed.  If the whistleblower and private attorneys won, or obtained a settlement, of course, Florida would have received most of the money.

According to a blog by one of the lawyers working on the appeal in this case, the Attorney General never even met with the whistleblower to make a determination of any of the merits of this case.

Who is acting “frivolously” here? Of course, the case involves millions of dollars of State money.  The State acted not merely not to support the whistleblower but to attack the whistleblower.

Pam Bondi moved to dismiss the case and then fought for the right to dismiss the case.

Bondi has not always acted to oppose fighting fraud, she once testified against legislation designed to cripple a case against health care providers.

So, you have to wonder, what the AG is thinking in this case, where she is fighting and going out of her way to have a case dismissed, one that at least one trial judge believes was worthy of serious consideration.

You could look it up, but this has not happened in any federal case.

Here’s the big problem, if the Attorney General can and does dismiss a whistleblower case this way, what private attorney is ever going to pursue a matter out of seal in Florida?

You spend years putting a case together. Fight defense motions conduct discovery spend money, and if you go to trial and lose that can happen, but if you are subject to the Attorney General just deciding to kill your case after a few years just when you should be able to try it, who is going to take that risk on as well?

I am certainly not saying that all False Claims Act cases are meritorious, (most, but not all), nor am I saying the government should intervene in every case. I am saying though that the idea that a whistleblower lawyer may have to fight not only the Defendants, but also the very government agency that is supposed to be on the same side is disheartening, disappointing, and other code words for words I can’t really use here.

More importantly it cripples the ability of lawyers and whistleblower to pursue meritorious claims at least on behalf of the State of Florida. The federal law is different and thankfully this action is confined to the State but this is still extremely disappointing to see.


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