On June 26th, 2014, the National Whistleblower Center joined in an amicus brief filed in Kalyanaram v. New York Institute of Technology before the U.S. Supreme Court in support of the Petition For Writ Of Certiorari.
The issue involves whether whistleblowers can be required to reveal the fact they have filed a False Claims Act case, which is under seal, during employment litigation. In Kalyanaram, the Second Circuit sanctioned the whistleblower because he did not reveal the existence of his FCA lawsuit during questioning at an arbitration hearing. Revealing it would have violated the FCA’s sealing provision, which is essential to ensure the confidentiality of the Government’s investigation. The whistleblower’s employment case was dismissed with prejudice.
The Second Circuit’s decision placed the whistleblower in the position of having to pick his poison: Comply with the FCA and risk dismissal of his employment case or face sanctions that could include dismissal of his FCA claim. If the Court’s decision is allowed to stand, it will have far reaching implications for future whistleblower reward cases in which lawsuits are filed under seal as to not tip off the defendant companies.
The Amicus asked the Supreme Court to hear this case in order to clear up the confusion that exists among litigants and the lower courts regarding the circumstances under which facts relating to a qui tam suit under the FCA may be disclosed in an arbitration proceeding without violating the sealing provisions.
The National Whistleblower Center was represented pro bono by three professors of law at Indiana Tech, James J. Berles, Adam Lamparello and Charles E. MacLean.
The Amicus brief is linked here.