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Wiley Rein's Roderick Thomas Discusses Fourth Circuit Decision in FCA Seal Provisions Case

BNA's Federal Contracts Report
April 7, 2011

Roderick Thomas, chair of the firm’s White Collar Defense Practice, was quoted commenting on the Fourth Circuit decision upholding the constitutionality of the False Claim Act’s (FCA) seal provisions in an April 5 article. The U.S. Court of Appeals for the Fourth Circuit decided that the provisions did not violate the First Amendment in stopping qui tam relators from discussing their complaints.  Mr. Thomas said that the sealing of FCA cases “can be both a blessing and a curse for defendants.  On the one hand, it keeps frivolous allegations of fraud from receiving more attention than they deserve. On the other, it allows potential damages to accrue while the government conducts its investigation, which can often last for several years.” He also noted that the court “comments on how the statute is tailored to accommodate the complexity of modern fraud investigations. It does not, however, give much consideration to how long modern fraud investigations tend to last.  As the dissent noted, courts routinely extend the initial sealing period for the government for months or years, leaving defendants in the dark as to the allegations against them and delaying any potential corrective action.”