Schindler Elevator Corp. v. United States ex rel. Kirk - Post-Decision SCOTUScast

On May 16, 2011, the Supreme Court announced its decision in Schindler Elevator Corp. v. US ex rel. Kirk. In general, the False Claims Act authorizes private individuals who discover fraud against the United States to sue on its behalf. If prosecution of the case is successful, the Act allows the individual to recover a portion of the damages and penalties imposed on the defrauder. There is, however, a notable exception to the general rule: the Act does not permit a private individual to sue based on information that was previously disclosed in a government "report" or "investigation" unless the individual was the original source of that information. The question in this case is whether alleged fraud disclosed in a federal agency's response to a Freedom of Information Act request falls within the government "report" or "investigation" bar to suit.

In an opinion delivered by Justice Thomas, the Court held by a vote of 5-3 that "a federal agency's written response to a request for records under the Freedom of Information Act . . . constitutes a ‘report' within the meaning of the public disclosure bar." Chief Justice Roberts and Justices Scalia, Kennedy, and Alito joined the opinion of Justice Thomas. Justice Ginsburg filed a dissenting opinion, which Justices Breyer and Sotomayor joined. Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Elizabeth P. Papez, who is a partner at Winston & Strawn LLP.

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