The procedural process involved in a whistleblower lawsuit can be confounding at best, fatal at worst. Fortunately, with the help of a knowledgeable and experienced False Claims Act attorney, cases like the recent D’Agostino v. ev3 Inc. need not crash to a halt over a procedural obstacle. Berger Montague is proud to have successfully advocated for this whistleblower case, giving relator Jeffrey D’Agostino the opportunity to amend the language of the complaint and ultimately continue toward a possible qui tam reward.[1. Wiessner, Daniel. “Whistleblower Didn’t Need ‘Good Cause’ to Amend Suit – 1st Circuit.” Reuters. October 1, 2015. Accessed October 7, 2015, http://www.reuters.com/article/2015/10/01/employment-whistleblower-idUSL1N1210HN20151001.]
Unfortunately, it’s not uncommon for some whistleblower cases to face the threat of dismissal throughout the course of a case. In today’s post, we will explore some of the most common reasons why a complaint may endure additional scrutiny. Tomorrow, we’ll examine the recent holding from the U.S. Court of Appeals for the First Circuit in which a three-judge panel concluded that our client was entitled to his request to amend his complaint despite objections from the defense that the tactic was implemented in bad faith.
Procedural problems in the pleading process
Like any other lawsuit, a False Claims Act action begins with filing a complaint. As we have covered in previous posts, these complaints are filed confidentially under seal to allow the government an opportunity to decide whether to intervene. This is the first hurdle of the pleadings process: only 20 percent of the filings are chosen for follow-up by the government. However, many plaintiffs continue to prosecute the action even if the government opts not to intervene.
For complaints filed in federal district court, the Federal Rules of Civil Procedure govern the pleadings process, including the format of the complaint, what information it must cover, and when a response is due. There has been conflict between courts in recent years over the amount of detail required at the pleadings stage, primarily about the specificity of each alleged false claim. In some cases, courts have dismissed complaints for failing to specifically allege every instance of purported fraud. Other courts have taken a more liberal approach: holding that general allegations of fraud are sufficient at the pleadings stage. Some courts even allow for a statistical sampling of fraud allegations — another point of contention among interested parties.This is a key moment for the whistleblower. The court may allow the plaintiff to amend his complaint, as discussed below, or it may dismiss the lawsuit altogether.
While procedural hiccups can cause complications in the pleadings process, cases should not be thrown out on technicality alone. Courts are expected to resolve matters on the merits of the case rather than on technicalities or procedural issues whenever possible.
Multiple amendments in complicated cases
Seeking additional time to amend complaints might elicit scrutiny if the defendant suspects that the whistleblower is attempting to unreasonably delay the case. However, as our D’Agostino case illustrates, there are often logical reasons to seek additional time to amend a complaint, including renaming defendants, adding evidence, or amending causes of action. Additionally, as courts are required to judge cases based on merit rather than on technicality, they should allow plaintiffs liberal opportunity to amend their complaints to comport with the procedural mandates.[2. “Federal Rules of Civil Procedure.” Cornell University Law School, October 1, 1949, Accessed October 7, 2015, https://www.law.cornell.edu/rules/frcp.]
Berger Montague advocates for whistleblower
In tomorrow’s post, we will examine a recent victory for one of our whistleblowers, including an explanation of an errant standard set by the trial court that effectively blocked our client from amending his complaint to include the correct defendants and additional evidentiary information. In the end, we were successful in convincing the court that the whistleblower shouldn’t be penalized for seeking an amendment, and we have been able to continue onward with the case.
For help with your whistleblower complaint, please do not hesitate to contact Berger Montague today!