A Florida court of appeals recently held that the state’s attorney general could unilaterally dismiss a qui tam action filed under the Florida False Claims Act (FCA) at any time even though the office originally declined to intervene. Though mostly based on Florida law, Barati v. State of Florida merits the attention of companies doing business in other states that have enacted laws similar to the Florida FCA. Arguments that succeeded in the Florida courts regarding Attorney General Pam Bondi’s authority to dismiss qui tam suits could very well prevail in other states if her counterparts take similarly aggressive action to dismiss baseless false-claims suits.
In 2009, Barati filed a false-claims lawsuit on behalf of Florida alleging that his former employer, Motorola, falsely represented to the state its ability to complete a contract to produce fingerprinting devices. Pursuant to the Florida FCA, the attorney general’s office investigated Barati’s claims and declined to join the action. The suit moved forward as a qui tam action, but on July 18, 2013, Attorney General Bondi filed a notice of voluntary dismissal with the trial court. Barati moved to strike the notice and, once the trial court determined that the “Attorney General had the authority to file a voluntary dismissal notwithstanding any objections of the Relator,” he appealed.
The Florida Court of Appeal, First District, affirmed, holding, “the [Florida] 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.” The court based its decision on the Florida FCA’s language, federal FCA case law, and the Florida Constitution.
First, the appellate court quoted extensively from the Florida FCA statute. Because no common-law right to a qui tam action exists, “[t]he Legislature is the sole authority of all rights granted private relators to file and litigate qui tam actions.” Turning to the text, the court noted that the statute carefully limited the rights of all parties other than the state attorney general and that the overall legislative scheme recognizes the attorney general’s extensive control of the litigation, regardless of whether she participates in the action. Although the statute does expressly limit the attorney general’s intervention in the suit once she initially declines, the court explained that no such limitation is imposed on dismissing the action.
Second, the court noted that even under the federal FCA, on which the Florida statute was mostly modeled, the Department of Justice can dismiss an FCA action (subject to a hearing), even after declining to intervene. Surveying U.S. Supreme Court and various federal circuit opinions, the court found further support for [its] holding that the Attorney General may dismiss a qui tam action, regardless of whether she intervenes before dismissing the action. In [its] view, the overarching principle at issue in these cases and in the instant case flows from one fundamental fact: The relator is only the assignee of the government under both statutes.
Finally, the court examined whether the attorney general’s interpretation of the Florida FCA was consistent with the Florida Constitution. Several sections of Article IV of the state’s constitution explicitly define the separation of powers among the three branches of government. Section 4(b) designates that the attorney general is the state’s “Chief Legal Officer.” Both state statutory and common law dictate that such constitutional authority includes full control over litigation brought in the state’s name:
Conducting and terminating actions brought in the name of and for the benefit of the State is the sine qua non of the State’s chief legal officer. A State’s chief legal officer without the authority to conduct the State’s litigation would be no legal officer at all.
State false-claims laws have joined the federal FCA as a popular, all-purpose device in the plaintiffs’ bar’s litigation toolbox. Businesses facing relator-driven state FCA claims of dubious merit should take inspiration from Barati v. State of Florida and urge responsible state attorneys-general elsewhere to follow Attorney General Bondi’s lead. Granted, some attorneys-general enthusiastically support qui tam litigation and may be loath to upset their allies in the plaintiffs’ bar. But even those attorneys-general should be reminded that they, and not private plaintiffs, are their states’ “chief legal officer,” and that frivolous false-claims litigation undermines economic growth in their states.