The Case of the Bashful Whistleblower

William Nash filed a whistleblower case against his former employer but wanted to remain anonymous so that his new employer wouldn’t know that he is—you guessed it–a whistleblower.

William’s qui tam action alleged Medicaid fraud by his former employer. When the government declined to intervene, William decided not to pursue the case. He asked the court to keep the case under seal so that his current employer wouldn’t find out about it or, alternatively, to substitute John Doe for his name.

The court turned him down. First, the False Claims Act specifically directs the court to unseal a case when the government makes its decision whether to intervene. Second, there is a strong presumption of public access to judicial documents. William’s fear of retaliation is too attenuated and speculative to overcome that presumption. Besides, the FCA contains anti-retaliation provision that should protect William.

Nor would the court substitute John Doe for William’s real name. The public “has a right to know who is using their courts.”

William did score one small victory. The court allowed him to file a new version of the motion under consideration—one that deleted the name of his current employer. Ironically, that name had never been in the record until William filed the current motion.

Maybe the lesson is that you shouldn’t blow a whistle if you don’t want to draw attention to yourself.

The case is US ex rel. Nash v. UCB, Inc., No. 14-cv-2218 (TPG) (SDNY 2107).

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