TALLAHASSEE – Attorney General Pam Bondi scored a win recently from the 1st District Court of Appeal of Florida when the appellate judges ruled that she did have authority to dismiss a 2009 whistle-blower lawsuit, despite a decision not to intervene formally in the case.
“We are pleased with the court’s decision, upholding the attorney general’s express dismissal authority in false claims cases,” Kylie Mason, press secretary for the Office of Attorney General told the Florida Record. “As the case is still active on a rehearing motion, it would not be appropriate to comment further at this time.”
In 2009, Zoltan Barati filed a qui tam lawsuit against Motorola Inc., under Florida’s False Claims Act. He had worked at Motorola as an engineer, and raised concerns that Motorola’s electronic fingerprinting system allegedly did not work in the way that Motorola said it did and that the company failed to tell the Florida Department of Law Enforcement, which purchased the system, about these shortcomings. After the company fired him, Barati filed a whistle-blower lawsuit, and because this was a case filed under the False Claims Act, the state of Florida was allowed to intervene in the case as an affected party. In 2010, Bondi’s office investigated the case and declined to intervene. In 2013, Bondi filed a motion to dismiss the case.
The question to the court of appeals was whether Bondi had the authority to dismiss the qui tam lawsuit against Motorola given that she declined to intervene when the case was presented to her office. Barati objected, saying that Bondi’s office did not have the right to dismiss the case after choosing not to join as an intervenor.
Qui tam lawsuits are filed against companies, on behalf of the plaintiff, in this case, Barati, and on behalf of the state. The attorney general has the option to intervene and pursue the case, or not to intervene and allow the Barati, as the relator, to pursue the case on his own.
In an answer brief filed in the 1st District Court of Appeal on June 18, 2015, the lawyers for Bondi’s office, Russell S. Kent, special counsel for litigation, and William E. Foster, assistant attorney general, wrote “[by] declining to intervene, the attorney general has already signaled that this qui tam action is without sufficient merit to justify expenditures of the state’s time or effort.”
The brief further stated that Bondi’s right to dismiss the case did not go away when her office chose not to join as an intervenor in the case, and that when she filed the motion to dismiss in 2013, that effectively ended the lawsuit against Motorola.
On Feb. 23, the 1st District Circuit Court of Appeal filed a rather long decision, with Judge Brad Thomas writing that "We hold that the attorney general possesses the plenary authority to unilaterally dismiss a qui tam action, regardless of the state's decision to decline to previously intervene in the litigation.” Chief Judge Clay Roberts and Judge Stephanie Ray joined in the decision.
Barati has filed a request for rehearing on the decision of the appellate court.