Florida case that affirmed AG's power to dismiss whistle-blower lawsuits not quite over yet

By Karen Kidd | Apr 8, 2016

TALLAHASSEE – When Florida's 1st District Court of Appeals affirmed in February the state attorney general's authority to dismiss a qui tam whistle-blower lawsuit in which it chose not to intervene, most legal observers declared the case of Zoltan Barati vs. State of Florida, Motorola, Inc. et al. dead.

The case, however, is proving to still have some fight left. 

Since Florida's 1st District Court of Appeal handed down its Feb. 23 ruling in the case, the court has granted an appellant's motion for extension of time to file a motion for rehearing and now is considering a motion for rehearing en banc.

That means it isn't quite over yet, Dorothy Easley of the law firm Easley Appellate Practice in Miami said in an email interview with the Florida Record.

"A motion for rehearing/rehearing en banc, by operation of appellate rule, tolls the times, and a decision is not final until that motion for rehearing/rehearing en banc is decided," Easley said. "While those types of motions are rarely granted, the decision is not final and the decision may be modified."

The appellants in the case still have options, Easley said.

"The appellants could also seek review in the Florida Supreme Court," she said. "While the decision in the 1st District Court of Appeal would be final without some stay of the mandate, as a practical matter, if the Florida Supreme Court granted review of the decision, then the parties would be foolish to treat the decision as the final word on the matter until the Florida Supreme Court speaks."

The case began in 2009 when former Motorola engineer Zoltan Barati alleged Motorola sold Florida's Department of Law Enforcement an automated fingerprinting identification system the company knew had problems that required several million dollars to fix. The lawsuit was filed under Florida's False Claims Act, which means the state's attorney general had the option to intervene.

Not only did the attorney general decide to not formally intervene in the case, the office in 2013 filed a notice of dismissal. Barati’s attorneys countered, in part, that the attorney general's office lost authority to dismiss the case when it chose not to intervene. On Feb. 23, the Florida appeals court reaffirmed the state attorney general's authority to dismiss a whistle-blower action under the state’s False Claims Act, even in cases in which the state chooses not to intervene in the action.

The decision led some legal observers to comment that allowing the attorney general the power to dismiss any Fair Claims Act case could provide unwarranted political power to dismiss cases on a whim, but not everyone agrees, Easley said.

"It is accurate in one sense, but it overlooks the attorney generals in most states have similar statutes because they are modeled after the federal statute," Easley said. "There is a detailed review and investigation by the attorney general before making a decision about whether to intervene, and whether to intervene and participate or intervene to move to dismiss. There is a detailed process in place. So it's not exactly accurate to say that it's a whim.

"At the same time, the attorney general is elected and it does introduce a political component to this."

Easley said that in the federal statute and decisions she has reviewed, such intervention is not taken lightly.

"And it not unprecedented that an attorney general will seek to dismiss a case," she said. "However, it is unusual. And I did find some cases where the right to unilaterally dismiss disappears when the attorney general declines to intervene and leaves it to the relator who continues to litigate the case. At that point, while it is for the state's behalf, there is a waiver notion running through some of these decisions for an attorney general to later go back and affirmatively attempt to get the case voluntarily dismissed."

A thread that runs through all those decision appears to be a concern that this approach actually frivolous false claims, or qui tam, lawsuits, Easley said.

"I think that is much ado about nothing, and what I mean by that is that there is always a concern by the defense bar, and a reasonable one, that lawsuits that have monetary awards for those that blow the whistle promote frivolous litigation," she said. "But there is no empirical evidence that this is happening and there are multiple filters to avoid this."

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