Defining “Public Disclosure” Under The False Claims Act: How Loud Must The Whistle Be Blown?

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

The term “whistleblower,” in general, refers to someone who informs on another’s illegal activities. The False Claims Act (FCA), for example, is one of several federal statutes that encourage individuals to disclose to the government their knowledge of another’s illegal activities, i.e., to blow the proverbial whistle.[1] Under the FCA, private individuals can receive large sums of money for blowing the whistle on fraud committed against the government. But once a whistle is blown, the FCA’s “public disclosure bar” prevents subsequent whistleblowers from obtaining rewards for the previously-disclosed fraud.[2] The issue, therefore, is in what manner must the whistle be blown in order for the FCA’s public disclosure bar to go into effect. For a majority of circuit courts that have addressed the issue, the public disclosure bar is not triggered unless the whistle is blown loud enough for the general public to hear it.[3] The Seventh Circuit, however, holds the whistle needs to be blown only loud enough for it to reach the ears of “a competent government official,” regardless of whether the public hears it.[4] Because the Seventh Circuit’s interpretation aligns more with the purpose of the FCA’s whistleblowing provision, it is more persuasive and should be followed by other courts.

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