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March 9, 2016

Trial Court Affirms Florida AG’s Authority to Dismiss Meritless Whistleblower Case

Florida Attorney General Pam Bondi dismissed a whistleblower case that had plaintiffs’ lawyers’ fingerprints all over it, and now a court has affirmed her authority to do so.

In a case against Motorola Inc., a private plaintiff “whistleblower” alleged that the company claimed payment for an unfulfilled state contract to create a fingerprinting system. But General Bondi dismissed it for lack of merit. Now, seven years after the case was filed, a Florida trial court has ruled that it is within the Florida Attorney General’s authority to dismiss the case.

The outcome of this case signals an important turn in the long history of False Claims Act (FCA) litigation and gives hope for reforms of these outdated laws in states across the nation as well as the federal FCA law.

The FCA is a Civil War era creation aimed at stopping government supplier profiteering by allowing individuals with “inside” knowledge of wrongdoing to sue on behalf of the state. The goal is to allow someone with knowledge of wrongdoing–the whistleblower—to come forward, usually anonymously. In exchange for the information, the government is made whole and the whistleblower gets a large cut of any recovery.

But while the law has good intentions, its modern use has morphed into a tool to enrich a few enterprising lawyers through the lawsuit system. FCA cases allow for triple damages on the alleged fraud, plus other penalties that eliminate a company’s ability to be a government contractor. The penalties and consequences are so severe that even innocent companies settle rather than risk a business-crushing punishment.

With each of these cases, the state has the option to intervene and take over the prosecution, a move that is almost always taken when the case has merit. General Bondi’s decision not to intervene on behalf of the whistleblower plaintiff is a rare yet tell-tale sign that the case against Motorola was not viable. 

Often, trial lawyers team up with a whistleblower to bring a FCA case precisely because of the huge damages and the risks for companies fighting them in court. With the deck stacked so in favor of the plaintiff, less meritorious cases come in to play. Motorola was surely one of those.

In Florida, the attorney general’s office is responsible for reviewing the case and handling associated costs, like discovery.  The more frivolous cases that flood the attorney general’s desk, the more taxpayer money wasted. But while previous attorneys general may have opted not to oppose and allowed the case to proceed, Bondi took another path.

Not surprisingly, plaintiffs’ lawyers are upset over the attorney general’s authority to dismiss their lucrative cases, and want to re-write the statute to eliminate this authority.

FCA cases are at heart about stopping fraud against the government. Deciding whether or not there is a credible case in this arena is exactly what a state attorney general should do.

General Bondi’s dismissal of a flimsy case is sadly too rare in this country, but it is the right thing to do to protect both the taxpayer and the integrity of the legal system. Profiteering – whether it is by defrauding the government or by abusing the lawsuit system – should be stopped. Let’s hope that more state attorneys general start looking at their FCA cases with the same eye that General Bondi does.

 

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