NewsThe Importance of Coding and Charting: How to Avoid Violating the False Claims Act
The recent settlement of a False Claims Act case afforded SDNY Judge Ronnie Abrams the opportunity to address the standard for redacting a qui tam Relator’s FCA complaint. Judge Abrams decided that Relator Devin English had not overcome the public right of access to Court documents and denied the motion to redact.
Relator brought an FCA qui tam complaint alleging the misappropriation of funding allocated by the National Institutes of Health. The SDNY U.S. Attorney’s Office intervened in part, settling FCA claims against Hunter College and a Hunter psychology professor, and declining to intervene with respect to other individual defendants. The Government complaint alleged that the professor improperly invoiced personal expenses, that Hunter used NIH funds to pay the professor undisclosed retention bonuses, and that Hunter and the professor submitted false timekeeping records. The professor and Hunter agreed to pay $375,000 and $200,000 respectively.
Relator moved to voluntarily dismiss his complaint against other defendants, but also asked the Court to publicly file only redacted versions of the complaint. Relator sought to have the Court redact the names of four defendants and the substantive allegations identifying those defendants in the complaint, as well as identifying information about those defendants in the case caption, settlement agreements and related documents.
In addressing the redaction issue, the Court first highlighted the common law right of access to judicial documents, which is “firmly rooted in our nation’s history.” The Court then stated the Second Circuit’s three-part test for whether documents can be sealed or redacted.
- Determine whether the documents are “judicial documents;”
- Assess the weight of the presumption of public access; and
- Balance competing considerations such as the danger of impairing law enforcement or judicial efficiency and the privacy interests of the movant.
First, the Court found the complaint was plainly a judicial document, even though it had been sealed and was being voluntarily dismissed. Second, the presumption of public access was high, as the proposed redactions were contextual information and substantive allegations that could shed light on the Government’s decision to pursue some defendants and not pursue others. Also, the Court noted that in an FCA case, the taxpaying public is effectively the real party in interest.
Finally, the Court rejected the countervailing interest advanced, that redaction was needed to protect Relator, an assistant professor at Rutgers University, from potential professional retaliation from named defendants, who he considered “luminaries” in his field that could wield influence over grant funding and professional invitations. The Court held that “the fear of the loss of professional opportunities” was not sufficient to justify the substantive redaction of judicial documents sought by Relator. Significantly, the Court stated that Relator took a calculated risk in filing the qui tam complaint, presumably undertaking a cost-benefit analysis in choosing to file, risking the possibility of negative attention in the interest of positive attention and money damages.
Judge Abrams’ decision is a reminder that once a qui tam FCA complaint is filed, Courts are very reluctant to shield its allegations from the public, even if the Relator chooses to dismiss the case.
