Government Contractor Compliance & Regulatory Update

Category Archives: Whistleblower

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Sanctions Award Strengthens Fight to Protect Confidential Company Records

By Connie Bertram and Amy Blackwood on Posted in Whistleblower
On October 18, 2017, a federal district judge in Alaska ordered a former employee to pay nearly $170,000 of his ex-employer’s legal fees as sanction for removing nine attorney-client privileged documents prior to his termination. The ruling was based on a decision this summer that the former employee willfully and deliberately disobeyed established norms of … Continue Reading

Proposed Rule Would Restrict Confidentiality Agreements Between Contractors and Their Employees

By Connie Bertram and Guy Brenner on Posted in Whistleblower
On January 22, 2016, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration proposed a new rule that would amend the Federal Acquisition Regulation to implement a section of the Consolidated and Further Continuing Appropriations Act of 2015 (the “Act”) addressing contractors’ use of confidentiality agreements. The new rule would apply … Continue Reading

Internal Investigation Documents Are Protected from Disclosure in False Claims Act Case, D.C. Circuit Holds

By Connie Bertram and Amanda Wiley on Posted in False Claims Act, Whistleblower
Reversing a lower court decision, the D.C. Circuit recently concluded – for a second time – that certain internal audit documents are protected from disclosure by the attorney-client communication and work production privileges.  On August 11, 2015, the D.C. Circuit issued a second writ of mandamus regarding the same group of documents, internal reports which … Continue Reading

Petition Urges DOL To Target Contractual Clauses Discouraging Whistleblowing

By Daniel Saperstein, Harris Mufson and Lloyd B. Chinn on Posted in Department of Labor, Whistleblower
The Government Accountability Project (GAP) and Zuckerman Law recently petitioned the U.S. Department of Labor (“DOL”) to issue rules and guidance prohibiting “de facto” gag clauses in settlement and severance agreements that dissuade whistleblowers from engaging in protected activities.… Continue Reading

Department of State Inspector General Issues Report on Contractor Confidentiality Provisions with Employees

By Connie Bertram and Daniel Davis on Posted in Whistleblower
Yesterday, the Office of the Inspector General for the U.S. Department of State (OIG) issued a report on its review of the use of confidentiality agreements and policies by Department of State contractors. In preparing the report, OIG sent a five-question survey to the 30 contractors with the largest Department of State contracts in 2012. … Continue Reading

Proposed Rule Would Allow Contractors’ Employees To File Whistleblower Disclosures With OSC

By Connie Bertram and Daniel Davis on Posted in Whistleblower
Last week, the U.S. Office of Special Counsel (“OSC”), an independent federal investigative and prosecutorial agency that handles claims of wrongdoing within the executive branch of the federal government, proposed revising its regulations to expand the categories of employees who may file a whistleblower disclosure with OSC.  Currently, only federal government employees can disclose to … Continue Reading

Sixth Circuit Dismisses Whistleblower’s Claims Made By Job Applicant

By Connie Bertram, Daniel Davis and Emilie Adams on Posted in Whistleblower
This week, the U.S. Court of Appeals for the Sixth Circuit ruled that a job applicant lacks standing to bring whistle-blower claims under the Energy Reorganization Act and the False Claims Act (“FCA”) because those laws’ retaliation provisions apply only to employees.  The Sixth Circuit is the first Court of Appeals to address this issue. … Continue Reading

False Claims Act Does Not Protect An Employee Disclosing His Whistleblower History

By Connie Bertram and Daniel Davis on Posted in Whistleblower
On October 20, the United States District Court for the Southern District of Ohio found that the False Claims Act (“FCA”) did not protect an employee who was fired after revealing his history as a whistleblower and offering to help his new employer prevent overcharges on a government contract.  The court held that the employee … Continue Reading

New Jersey Federal Court Allows “Self-Help” Counterclaims Against Potential FCA Whistleblowers To Proceed

By Connie Bertram and Emilie Adams on Posted in Whistleblower
Last week, a New Jersey federal court allowed medical device maker Boston Scientific Neuromodulation Corp. (“Boston Scientific”) to proceed with counterclaims against two of its former employees for violating their contracts with the company by retaining and disclosing company proprietary data after they were terminated.  The former employees have asserted False Claims Act claims against … Continue Reading

Proskauer Obtains Dismissal of High-Stakes False Claims Act Suit

By Edward S. Kornreich, Sigal Mandelker and Roger Cohen on Posted in Whistleblower
On August 7, 2014, Judge Castel of the Southern District of New York dismissed a False Claims Act (“FCA”) complaint that was based primarily on allegations that the defendant Hospital improperly focused on referral revenue in its physician compensation decisions. The Court insisted that an FCA complaint must set forth specific facts supporting the allegations … Continue Reading

Agencies Issue Final Rule on the Recovery of Contractor Whistleblower Legal Costs

By Connie Bertram and Daniel Davis on Posted in Whistleblower
Today, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration issued a final rule that establishes when government contractors and subcontractors may recover legal costs incurred in defending against whistleblower retaliation lawsuits.  Generally, the rule prohibits a contractor from billing the government for the costs of litigating employees’ claims under federal … Continue Reading

Texas Federal Court Dismisses FCA Claims As Insufficiently Pled

By Harris Mufson and Jon Dueltgen on Posted in Whistleblower
In U.S. ex rel. Williams v. McKesson Corp., No. 3:12-CV-0371-B (N.D. Tex. July 9, 2014), a Texas federal court recently dismissed a qui tam whistleblower suit by a former employee of McKesson, a Texas-based entity that provides billing-related services to the health care industry, holding that the former employee failed to establish “the existence of … Continue Reading

Fifth Circuit: FCA Inapplicable to Claims Involving Private Funds Administered by Government-Created Programs

By Connie Bertram and Rachel Fischer on Posted in Whistleblower
In United States of America ex rel Rene Shupe v. Cisco Systems, Inc. and Avnet, Inc., No. 13-40807 (5th Cir. July 7, 2014), the Fifth Circuit reversed a district court’s order denying a motion to dismiss a qui tam whistleblower suit, holding that the False Claims Act does not apply to submissions by telecommunications companies … Continue Reading

Third Circuit Adopts Less Demanding FCA Pleading Standard

By Connie Bertram, Daniel Davis and Emilie Adams on Posted in Whistleblower
Last week, the Third Circuit reversed a New Jersey district court’s decision to dismiss a False Claims Act (FCA) qui tam law suit, holding that the court applied an overly demanding pleading standard to relator Thomas Foglia’s complaint.  The Third Circuit’s decision joins the growing debate that has split the circuits as to whether whistleblowers … Continue Reading

Second Circuit Dismisses $50 Million FCA Suit

By Connie Bertram, Daniel Davis and Emilie Adams on Posted in Whistleblower
Last week, the United States Court of Appeals for the Second Circuit affirmed the dismissal of a False Claims Act (“FCA”) whistleblower suit seeking $50 million in damages from Huron Consulting Group Inc. (“Huron”) for alleged fraudulent billing practices.  The case is one of many FCA suits around the country related to health care billing … Continue Reading

First Circuit Rules on Scope of FCA First-to-File Rule in U.S. v. Bristol Myers Squibb, Inc.

By Andrew Aitchison, Connie Bertram and Daniel Davis on Posted in Federal Acquisitions, Whistleblower
The First Circuit ruled last week that an earlier-filed False Claims Act complaint will preclude a later-filed complaint if it arises out of the same underlying facts, even if the allegations are not identical. The case concerns claims by two relators asserting claims against Bristol-Myers Squibb, Inc. (“BMS”) and Sanofi-Aventis U.S. LLC (“Sanofi”).  In May … Continue Reading

Department of Defense Adopts Final Rule Implementing Whistleblower Amendments

By Andrew Aitchison on Posted in Employment Law, Whistleblower
The Department of Defense (DoD) recently adopted a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS).  The rule implements increased whistleblower protections for contractor and subcontractor employees from Section 827 of the National Defense Authorization Act for Fiscal Year 2013. The rule broadens and clarifies whistleblower protections for federal contractor and subcontractor employees.  … Continue Reading

Proskauer Offers Webinar On Whistleblowing And Retaliation Issues

By Connie Bertram on Posted in Employment Law, Whistleblower
Please join us on Tuesday, February 25 for a Webinar addressing the many significant developments in 2013 in federal and state whistleblower legislation and litigation, with a particular emphasis on Sarbanes-Oxley (SOX) and False Claims Act (FCA) developments.  Our speakers will also offer practical advice to employers regarding preparing for and defending whistleblower claims and … Continue Reading

Interim Rules on Whistleblower Protection for Contractor Employees Issued by DOD, GSA and NASA

By Connie Bertram on Posted in Employment Law, Federal Acquisitions, Security, Whistleblower
On September 27, 2013, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration announced interim rules in the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations Supplement (“DFAR”) outlining enhancements to whistleblower protections for contractor employees (the “Program”).  The interim rules implement Section 828 of the National Defense Authorization Act … Continue Reading

Expanded Whistleblower Provisions Applicable To Federal Contractors And Subcontractors Take Effect

By Connie Bertram and Daniel Davis on Posted in Employment Law, Labor Law, Whistleblower
Yesterday a significant expansion of whistleblower protections for employees of federal contractors and subcontractors took effect.  The National Defense Authorization Act for 2013 (“NDAA”) extended whistleblower protections to an employee of a “contractor, subcontractor, or grantee” who makes a claim of gross mismanagement, gross waste, abuse of authority, a substantial and specific danger to public … Continue Reading

The Fourth Circuit Upholds Entry of Summary Judgment in Favor of CIED Manufacturers, Finding that Complaints Concerning Module-Level Testing Were Not Protected Activity Under FCA Whistleblower Provision

By Connie Bertram on Posted in Whistleblower
This blog entry was written by Connie N. Bertram, who represented the defendant contractors in the proceedings before the district court. Plaintiff, former engineer for defendant Impact Science & Technology, Inc. (IST), brought suit against IST and related entities under the whistleblower provisions of the False Claims Act (FCA) in 2007.  A federal district court … Continue Reading
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