Courts Should Adopt Professor Hesch’s “Zone of Protection” Immunizing Whistleblowers From Contract or Tort Claims Arising From FCA Disclosures

As the qui tam provisions of the False Claims Act (FCA) have become increasingly effective in enabling the government to recover billions of dollars in fraud, employers have become increasingly aggressive in suing whistleblowers for disclosing company “confidential” documents to the government.  While these lawsuits are often frivolous and do not allege any real damages, they undermine the FCA by deterring whistleblowers from reporting fraud.

Professor Joel Hesch has published a terrific article in the Drake Law Review titled “The False Claims Act Creates a ‘Zone of Protection’ That Bars Suits Against Employees Who Report Fraud Against the Government,” which provides compelling statutory and public policy justifications for the creation of a “zone of protection” that immunizes whistleblowers from contract or tort claims flowing from FCA disclosures.  Hopefully federal and state courts will adopt this “zone of protection,” and thwart companies from improperly inhibiting relators from disclosing FCA violations.