On February 1, 2016, the Northern District of Indiana ruled in a case brought under the Federal Railroad Safety Act (FRSA) that whether a whistleblower has fulfilled relevant administrative requirements prior to filing suit is a “condition precedent” rather than a “jurisdictional requirement.”  King v. Ind. Harbor Belt R.R., 2017 U.S. Dist. LEXIS 43263 (N.D. Ind. Feb. 1, 2017).

Plaintiff, who was employed by the Indiana Harbor Belt Railroad (Company), filed a whistleblower retaliation claim under FRSA, a whistleblower protection statute that is similar in many respects to Section 806 of SOX.  Like many other whistleblower protection statutes, the FRSA requires a whistleblower to file a complaint with OSHA within 180 days after the alleged retaliation occurred.

secOn February 28, 2017, in an Order almost entirely devoid of detail, the SEC announced that a whistleblower will receive 20% of any monetary sanctions collected in an enforcement action commenced as a result of the whistleblower’s tip. The SEC is giving this “reduced” award while acknowledging that the whistleblower (1) was “culpable” in the securities violation at issue, and (2) unreasonably delayed reporting the company’s wrongdoing to the agency.

On March 6, 2014, the United States District Court for the District of Columbia ruled that Kellogg Brown & Root Services, Inc. (“KBR”) must produce to a qui tam relator 89 documents relating to internal investigations conducted by the Company.  The court held that neither the attorney-client privilege nor the attorney work-product doctrine barred production or disclosure of the documents.   United States ex rel. Barko v. Halliburton Co. et al., Case No. 05-01276 (D.D.C. Mar. 6, 2014).  The decision could have widespread implications for companies that conduct internal investigations of whistleblower complaints.

The Supreme Court is considering whether to hear two whistleblower cases under the False Claims Act (“FCA”), both on appeal from the Fourth Circuit.  The Supreme Court has asked the U.S. Solicitor General to weigh in before the Court decides whether to hear either case.  The two cases are Kellogg Brown & Root Services Inc. et al v. U.S. ex rel Carter, case no. 12-1497, and U.S. ex rel. Nathan v. Takeda Pharmaceuticals North America Inc. et al., case number 12-1349.

Arguing that relators’ counsel has retained and used, without authority, more than 800 of its attorney-client privileged and work product documents, Kinetic Concepts, Inc. (“KCI”) has asked the District Court for the Central District of California to disqualify opposing counsel in United States ex rel., Steven J. Hartpence v. Kinetic Concepts, Inc., Case No. 08-01885 (C.D. Cal. Apr. 8, 2013).

Two relators, Geraldine Godecke and Steven Hartpence, have brought qui tam actions against KCI alleging that it submitted false claims to Medicare for KCI’s wound care treatment devices in violation of the federal False Claims Act (“FCA”).  Both relators, who held senior-level positions with KCI, routinely interacted with in-house and outside counsel concerning the company’s legal advice, strategy and tactics.  Before she was terminated, Relator Godecke spent the better part of a week downloading hundreds of communications with in-house and outside counsel with the intention of removing them before she was terminated.

In United States ex rel. Carter v. Halliburton Co., No. 12-1011 (4th Cir. Mar. 18, 2013), the Fourth Circuit held that the statute of limitations for False Claims Act claims is suspended during times of war.  The court also held that the rule barring a False Claims Act plaintiff (a “relator”) from bringing a claim if substantially similar claims have already been filed by another party (the “first-to- file” rule) does not apply after the first claim is dismissed.