In a March 8, 2017 ruling, the Ninth Circuit deepened a circuit split, holding that Dodd-Frank’s whistleblower protections extend to employees who raise concerns internally, and not merely to those who raise concerns to the U.S. Securities and Exchange Commission.
On March 14, the Fifth Circuit affirmed summary judgment for the defendants in a former employee’s False Claims Act suit against BP related to an oil rig in the Gulf of Mexico. The opinion is notable in at least two respects. First, the Fifth Circuit affirmatively “agree[d] with [its] sister circuits that the public disclosure bar is no longer jurisdictional” after the 2010 amendments to the FCA. Slip op. 4 n.2. That had previously been an open question in the Fifth Circuit. Second, the Court reinforced the “demanding” materiality standard that the Supreme Court articulated in Escobar. Id. at 4-6. The relator’s FCA claims had led Congress to request an investigation by the Department of Interior. After that investigation, however, DOI “decided to allow the [rig] to continue drilling,” and that decisions was, in Escobar’s words, “‘strong evidence’” that regulatory compliance requirements related to the rig were “not material.” Id. at 5-6. Summary judgment for defendants was therefore warranted.
A copy of the opinion is here.