There is strong appeal in the concept of remaining anonymous for many whistleblowers but unless you can prove both a fear of severe harm, and that the fear of severe harm is reasonable, two recent Circuit Court decisions illustrate how unlikely it is that you can remain in the shadows and demonstrates the risks inherent to that pursuit.
In the first of the two cases, a Jane and John Doe filed a qui tam complaint under their actual names against Janssen Therapeutics, Janssen Products, LP, and Johnson & Johnson, Inc. (“Janssen Therapeutic Defendants”)[i]. In the complaint, Jane and John Doe alleged that the Janssen Therapeutic Defendants submitted false claims by promoting off-label use of two HIV medications.
After two years of investigating, Jane and John Doe (“the relators”) were informed that they were not the first-to-file an FCA lawsuit against the Janssen Therapeutic Defendants relating to the allegations in their complaint. As a result, the relators amended their complaint under seal filing the exact same complaint only replacing their actual names with the pseudonyms Jane and John Doe.
After the relators filed their amended complaint, the government filed a ‘Notice of Election to Decline Intervention’ and requested that the amended complaint and the Notice of Election to Decline be unsealed but that all other contents of the docket remain under seal. The District Court granted the motion and the original complaint remained under seal. The relators, subsequently, voluntarily dismissed their complaint.
The Janssen Therapeutic Defendants moved to unseal the original complaint and, applying the test for proceeding with a litigation anonymously set out in Doe v. Megless[ii],the District Court ordered the original complaint to be unsealed after 45 days.
Under the Megless test, a litigant must show “both a fear of severe harm, and that the fear of severe harm is reasonable.” Further, Megless indicates that once a litigant makes this initial showing, the “district court should balance a plaintiff’s interest and fear against the strong interest in an open litigation process.”[iii]
On December 27, 2019, the Third Circuit overturned the lower court’s unsealing order since the lower court applied the wrong standard. The Third Circuit stated that the appropriate standard was not the Megless test, but rather the standard for unsealing court records established in In re Cendant Corp.[iv] In re Cendant Corp. sets out that in order to overcome the presumption of access in relation to a judicial record, a plaintiff must show that its interest in secrecy outweighs that presumption.
Since the relators had already voluntarily dismissed their complaint, the Third Circuit remanded the case and instructed the District Court to “consider whether Janssen’s motion is a vehicle for improper purposes, in which case the Original Complaint may appropriately remain under seal.”[v] Even after the relators dismissed their complaint, and were no longer pursuing the litigation, only improper motives by the Defendants could overcome the presumption of openness in a court proceeding.
In the second case which demonstrates the risks in attempting to proceed anonymously, we explore another matter related to the Janssen companies…
Volkhoff and the Janssen Defendants
On September 16, 2016, Volkhoff, LLC (“Volkhoff”), a Delaware limited liability company, filed a qui tam complaint alleging FCA violations by Janssen Pharmaceutical N.V., Janssen Pharmaceuticals, Inc., Janssen Research & Development, LLC, Johnson & Johnson, and Ortho-McNeil (“Janssen Defendants”).[vi] In the complaint, Volkhoff alleged that the Janssen Defendants fraudulently and unlawfully marketed their medications.
Neither the United States nor any state elected to intervene in the complaint, allowing Volkhoff to proceed with the original complaint on its own. The Janssen Defendants filed a motion to dismiss the Original Complaint. After the Janssen Defendant’s moved to dismiss the Original Complaint, Volkhoff did not oppose the motion, but rather, filed a First Amended Complaint (“FAC”) with the same allegations as the original complaint only replacing “Volkhoff” with “Jane Doe,” a natural person.
The FAC did not mention Volkhoff, nor did it mention Volkhoff’s relationship to Jane Doe. Further, in the filings, Jane Doe and Volkhoff acknowledged that the replacement of Volkhoff with Jane Doe was a tactical decision aimed at avoiding the Janssen Defendants’ challenge to the Original Complaint’s FCA retaliation claim.
The Janssen Defendants moved to dismiss the FAC. The District Court dismissed the FAC on the grounds that the District Court lacked subject matter jurisdiction since Jane Doe was not the first-to-file, because her allegations were the same as Volkhoff’s first-filed complaint. Since Volkhoff and Jane Doe were separate legal entities and the FAC failed to disclose the relationship between Volkhoff and Jane Doe, Jane Doe was statutorily precluded from pursuing her FCA claims.
The District Court also dismissed Jane Doe’s FCA employment retaliation claim because she failed to demonstrate a need for proceeding anonymously. Volkhoff LLC appealed but failed to include Jane Doe as a party on the appellate notice.
Since Volkhoff and Jane Doe are separate legal entities and Volkhoff chose not to meaningfully involve itself in the district court proceedings, Volkhoff failed to meet the requirements for appellate jurisdiction. Jane Doe also failed to meet the requirements for appellate jurisdiction since she was not named on the appellate notice. As a result, the Ninth Circuit dismissed Volkhoff’s appeal for lack of jurisdiction.
As the cases involving Janssenand Johnson & Johnsondemonstrate, the ability to successfully pursue an FCA complaint anonymously, is extremely limited and many of the statutory bars in the FCA statute, such as the first-to-file bar, may be implicated. There may be several reasons a relator may want to file an FCA complaint anonymously, but the benefits of that choice almost never outweigh the risks. A relator must have a genuine need for proceeding anonymously.
If you are aware of any person, corporation or
entity that you think may be violating the Federal False Claims Act or a State
False Claims Act, you need an experienced attorney who can assist you in
evaluating your potential claim and help you file it in a way that will give
you the best success. Please do not hesitate to contact us today.
[i] United States v. Janssen Therapeutics, No. 19-1376, 2019 U.S. App. Lexis 38780 (3d Cir. Dec. 27, 2019) (“Janssen Therapeutics”)
[ii] Doe v. Megless,654 F.3d 404 (3d Cir. 2011)
[iii] Doe v. Megless,654 F.3d at 408
[iv] In re Cendant Corp., 260 F.3d 183 (3d Cir. 2001).
[v]. Janssen Therapeutics at *5
[vi] United States ex rel. Alexander Volkhoff, LLC v. Janssen Pharmaceutica N.V., No. 18-55643, 2020 U.S. App. LEXIS 70 (9th Cir. Jan. 2, 2020)