FCA Alert : Lawyers & Attorneys for Whistleblower, False Claims Act & Qui Tam Defense : Kelley Drye & Warren LLP

On December 27, 2010, the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of an employee’s retaliation claim against a firearms contractor, Heckler & Koch Defense, Inc. (“HKD”), brought under the anti-retaliation provision (§ 3730(h)) of the federal False Claims Act.  Mann v. Heckler & Koch, Defense, Inc., No. 09-1847, 2010 WL 5262729 (4th Cir. Dec. 27, 2010).  The Fourth Circuit held that the employee’s opposition to, and investigation of, his employer’s conduct surrounding a government bid submission and the employee’s subsequent filing of a retaliation claim were not protected activities under the FCA because the employer’s conduct involved “nothing more than non-fraudulent statements made…during the course of a contractual bidding process.”

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On September 13, 2010, the Third Circuit in Lytle v. Capital Area Intermediate Unit, upheld a district court's dismissal of claims brought under the retaliation provision of the False Claims Act, holding that recent amendments to the FCA did not have retroactive effect.

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On August 9, 2010, the District Court for the Middle District of Tennessee in Smith v. C.R. Bard, Inc., Civil Action Number 3-09-0139, dismissed a claim alleging wrongful discharge in retaliation for actions taken in furtherance of an FCA claim, holding that plaintiff had failed to show that his actions were "sufficiently connected to exposing fraud or false claims against the federal government."

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