On February 18, 2010, the Eleventh Circuit partially overruled a district court’s dismissal of a False Claims Act case. In US ex rel. Sanchez v. Lymphatx, Inc., an employee brought a False Claims Act action against her former employer for fraudulent Medicare billing practices and retaliation. She also alleges that she was fired after complaining to her employer about “unlawful actions” and “warn[ing] them that they were ‘incurring significant criminal and civil liability.’”
The district court granted the employer’s motion to dismiss, holding that Sanchez failed to satisfy the pleading requirements of Rule 9(b) and failed to state a claim of retaliation under 31 U.S.C. § 3720(h). Sanchez appealed, claiming that she should have been granted leave to amend her complaint. On appeal, the Eleventh Circuit upheld the dismissal of the qui tam action but overturned the dismissal of the retaliation claim, holding that “[b]ecause her retaliation claim did not depend on allegations of fraud, Sanchez’s complaint only needed ‘a short and plain statement of the claim showing that [she was] entitled to relief’” under Rule 8(a).
For information about The Employment Law Group® law firm’s False Claims Act and Qui Tam Litigation Practice, click here.
Jason Zuckerman, a Principal at The Employment Law Group® law firm, is quoted in a Law360 article titled “Solis’ Whistleblower-Friendly Board May Reshape SOX.” The article discusses the recent appointment of Paul Igasaki as ARB chair and Cooper Brown as vice chair and predicts that the ARB’s interpretation of the Sarbanes-Oxley Act will become more favorable for whistleblowers.
Mr. Zuckerman discusses loopholes in whisteblower statutes created by past ARB decisions which “ignored the plain meaning of whistleblower protection statutes,” and “[made] it more difficult for whistleblowers to prevail.” Regarding the new appointees, Mr. Zuckerman noted that “it will be refreshing to have ARB members who are not hostile to whistleblower rights.”
For more information learn more about The Employment Law Group® and its Sarbanes-Oxley Whistleblower Practice, click here.
In an article titled, “Labor Issues Loom Large,” Human Resource Executive Online reports on the potential impact of President Obama’s 2011 budget on the enforcement of employment laws. The article discusses the potential impact of Congress providing OSHA with additional funding for investigations and enforcement.
While employment practitioners speculate that increased OSHA enforcement will have a negative impact on employers, Mr. Zuckerman notes that increased enforcement benefits public interest. Zuckerman observes that misclassification of employees harms the public interest in that employers fail to pay unemployment taxes and to provide health insurance. Mr. Zuckerman also notes an important benefit of in enforcing discrimination laws. “An employer who discriminates against employees on the basis of race or gender loses the competitive advantage of having diverse perspectives in its workforce.”
Mr. Zuckerman is optimistic that increased resources will allow OSHA to improve upon what in his experience are often “inadequate investigations of whistleblower complaints.” He hopes “that with more financial recourses, OSHA will comply with the statutory mandate to enforce whistleblower-protection laws.”
For more information on Mr. Zuckerman and The Employment Law Group® law firm, click here.
The Employment Law Group® law firm is a contributing author of the 2010 annual update on the whistleblower retaliation provision of the Sarbanes-Oxley Act, a copy of which is available here. This annual update is a project of the ABA Section of Labor and Employment Law Committee on Federal Labor Standards Legislation Subcommittee on the Sarbanes-Oxley Act of 2002.
For information on The Employment Law Group® law firm’s Sarbanes-Oxley Whistleblower Practice, click here.