Can whistleblowers remain anonymous under the False Claims Act?

Potentially, but there is no guarantee. 

Every False Claims Act (FCA) case is initially filed under seal.  It remains under seal for at least 60 days, and generally longer, while the government determines whether to intervene.  

The government almost always requests and receives permission to extend the seal period so that it can conduct a robust investigation.  Some cases remain under seal for over a year.  While the case is sealed, only the government and the court will know the whistleblower’s identity.  The defendant and public will not even know that a case has been filed. 

The FCA does not explicitly provide a way for whistleblowers to remain anonymous after the court unseals the case.  But a whistleblower may remain anonymous in certain circumstances.  For example, a whistleblower may file a complaint using John or Jane “Doe” as a pseudonym. 

Courts generally allow pseudonyms only where the whistleblower has a reasonable fear of severe harm from disclosing her identity.  The fear of harm must outweigh the public’s interest in open judicial proceedings.  Given that high bar, few whistleblowers ultimately maintain their anonymity through a “Jane Doe” suit.

Alternatively, whistleblowers may file suit under the name of an entity such as a limited liability company or partnership.  The FCA allows suits by entities, which qualify as “a person” under the Act.  But forming an entity to bring the suit may not prevent the whistleblower’s identity from being revealed during discovery or in court filings.  If the government needs to litigate the case, for example, it may call the whistleblower as a witness to testify about the fraud they reported.

To learn more about the False Claims Act and other whistleblower programs, go to www.mololamken.com and follow us on LinkedIn.  “Brilliant lawyers with courtroom savvy” — Benchmark Litigation.  Copyright MoloLamken LLP 2023.