A salesman for a medical device manufacturer expressed concerns to his supervisors that the company was illegally marketing its products to physicians. After the company fired the salesman, he brought a lawsuit against the company, alleging retaliatory discharge in violation of the False Claims Act’s anti-retaliation provision. In Smith v. C.R. Bard, Inc., 2010 WL 3122793 (M.D. Tenn. Aug. 9, 2010), the court dismissed the case, ruling that the salesman did not engage in protected activity under the False Claims Act, for his internal complaints did not seek to “expose” fraud on the government.
Narrow readings of the FCA, such as this decision, were the driving force behind several recent FCA amendments. Under the amended False Claims Act, employees who now raise concerns within the confines of the corporation are protected by the FCA’s anti-retaliation provision. Unfortunately, the courts have ruled that these amendments do not apply to cases that were filed prior to the enactment of the amendments.