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Business Crimes BulletinFeaturesConsumer ProtectionGeneral Counsel and In House CounselLitigationWhite Collar Crime

The False Claims Act Sealing Orders

By Andrew W. Schilling and Megan E. Whitehill
February 01, 2018

Editor's Note: In light of the background of Parts One and Two of this article, the question remains: Is the defendant in a False Claims Act (FCA) matter barred from discussing the case, as are the relator and the government?

When the court enters a sealing order at the outset of the False Claim Act (FCA) case, such an order typically directs that the complaint and all other papers simply be filed “under seal.” See, e.g., Order, United States ex rel. Boyd v. Riverpoint 714 LLC et al., 15 Civ. 1406 (E.D. Cal. Aug. 28, 2015) (“The plaintiff's complaint shall be filed in camera and under seal.”); Order, U.S. ex rel. Littlewood v. King Pharmaceuticals, Inc., 10 Civ. 973 (D. Md. Apr. 21, 2010) (“IT IS, THEREFORE, ORDERED that the Court shall maintain the Complaint and all other papers filed in this case UNDER SEAL until further Order of the Court.”); United States ex. Rel. Johnson v. Walmart Stores, Inc., 13 Civ. 2277 (E.D. Ca. Nov. 6, 2013) (granting motion to “seal the matter”); U.S. ex rel. Arkfeld v. Bleiberg, 08 Civ. 106460 (E.D.Mich. Feb. 14, 2008) (“Having considered Relators' Motion to File The Complaint under Seal, the motion is granted and it is ORDERED that the Complaint of Plaintiffs/Relators, Ted A. Arkfled, D.C. and Ann Myers be filed, under seal, in paper format, with the Clerk of Court, in accordance with U.S.C.
§ 3730(b)(2) of the False Claims Act.”).

It is hard to see how a defendant could ever violate such an order, which is not even directed at the defendant and not disclosed to the defendant. In re False Claims Act Proceedings, 98 Civ. 825 (S.D. Ohio Oct. 30, 1998) (“This case … shall be filed in camera and shall remain under seal for at least 60 days, pursuant to 31 U.S.C. §3730(b)(2). No documents, pleadings or other materials in this case, including the Relator's Statement, shall be provided to or served on Defendant until the Court so orders or at least sixty (60) days have expired pursuant to 31 U.S.C. §3730(b)(2). Under no circumstances shall the names of the parties or the existence of the lawsuit be publicly disclosed to otherwise disclosed to Defendant, in any manner, while this Order remains in effect.”).

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