Harold Malkin was quoted in a February 8 Law360 article titled “Bizarre Bid to Sell FCA Suit Shows Value of Secrecy.” The article discusses a recent False Claims Act (FCA) matter involving former U.S. Department of Justice attorney Jeffrey Wertkin, who was arrested and accused of trying to sell a copy of a sealed FCA complaint to the cybersecurity company targeted by the complaint. The case highlights the intense interest both sides have in concealing or unearthing a complaint’s allegations, as the information contained in a qui tam complaint is very valuable and it often takes a substantial amount of time to investigate FCA cases with the government as the defendant.
Harold Malkin, head of the investigations and regulatory compliance practice at Lane Powell, often oversaw FCA cases in his two decades at the U.S. attorney’s general office in Seattle and said that keeping a case sealed during investigation gives prosecutors the element of surprise.
“Anything that removes that edge is problematic,” Malkin said.
Malkin says that depending on the investigation, a company might already have received a subpoena by that point that would reveal some sense of the government’s case. Although, a subpoena wouldn’t necessarily reveal all of what the government was looking into or expose claims that the government may ultimately decline to take on but which the whistleblower may pursue independently.
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