The Kalyanaram v. New York Institute of Technology case raises the question as to whether a whistleblower is required to reveal that they have filed a False Claims Act (“FCA”) case.
In this case, the Second Circuit sanctioned the whistleblower in question 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 U.S. government’s investigation. As a result, the whistleblower’s employment case was dismissed with prejudice.
On June 26, 2014, the National Whistleblower Center (“NWC”) joined an amicus brief filed in the Kalyanaram v. New York Institute of Technology case. The brief was written in support of the Petition for Writ of Certiorari, which is in request of a Supreme Court hearing. The full brief, available here, states that whistleblowers should not be pressured into choosing their own positions. It further states that they should not face a penalty for following the law. The brief references the “alleged ‘wrong’ relied upon by the Second Circuit Court of Appeals.” It posits that the Second Circuit Court’s decision demonstrated how a “Petitioner followed the Act’s express mandate-and suffered the consequences.” The brief argues, “the Second Circuit’s decision was contrary to the sealing provision’s express language, frustrated the Act’s broader purposes, and created uncertainty for future whistleblowers who find themselves torn between conflicting-and irreconcilable-legal obligations.” It warns that “future whistleblowers who are faced with the same quandary-and look to the courts for guidance-will now find uncertainty. In fact, potential whistleblowers may hesitate before exposing wrongdoing by their employers to avoid being thrust into such a dilemma. That result is not surprising,” before concluding that “No litigants. particularly whistleblowers, should be forced to make a Hobson’s choice.”
In this case, the NWC was represented pro bono by three professors of law at Indiana Tech, James J. Berles, Adam Lamparello and Charles E. MacLean.
Photo by Dmitrij Paskevic
