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Editor: Mike Bothwell
Profession: Qui Tam Attorney

Category: Legal Analysis

I first noticed the announcement of a to be filed qui tam lawsuit under the False Claims Act on Bradblog. It appears that as a follow up to the Rolling Stone article on the stolen 2004 election, Robert F. Kennedy, Jr. is going to file a False Claims Act lawsuit against the manufacturers of electronic voting machines.

The Democratic Radio Blog has it that it will be filed first thing next week. Tim Dickinson on myspace blog adds that with over 700,000 people downloading the Rolling Stone article and the furor unleashed in the blogosphere (and the New York Times), this may be an event the mainstream press will regret not covering in more depth.

The problem is that this is not just any lawsuit--it is a whistleblower lawsuit under the False Claims Act. The FCA requires that a lawsuit be filed under seal so that the defendant doesn't know of its existence. It also prohibits whistleblowers from brining lawsuits based upon publicly disclosed information.

With these two provisions and a plethora of bad decisions out there dismissing lawsuits where the seal was breached or where there was too much pre-filing publicity, it is a strange strategy to see a lawyer essentially have a press conference announcing the pending filing. I don't recommend this to any present or future practitioners.