United States ex rel. Littlewood v. King Pharmaceuticals, Inc.
806 F. Supp. 2d 833
D. Maryland2011Background
- Relator filed a qui tam action on April 16, 2010 alleging off-label promotion of FLECTOR Patch by King, Alpharma, and IBSA under the False Claims Act.
- Government declined to intervene; relator dismissed the underlying suit with consent under Rule 41(a) in May 2011.
- Government sought unsealing of the Amended Complaint and Amended Notice, but requested maintained seal for its extension motions.
- Court explains FCA seal provisions: initial 60-day seal, potential extensions for good cause, and unsealing when government intervenes or declines.
- Court finds strong public interest in disclosure; denies sealing, orders unsealing of Amended Complaint; addresses related Montana/settlement context and stays 30 days for appeal; cites multiple FCA seal authorities.
- Court cites that FCA complaints are in government’s name and involve public funds, favoring public access to records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Amended Complaint should remain sealed after non-intervention | Littlewood opposes unsealing due to privacy and public-harm concerns | Government argues public access should be preserved, but may seek sealing for extensions | Amended Complaint should be unsealed |
| Whether the government motions for extension should be sealed | Relator argues no basis to seal; public interest favors disclosure | Government claims need for secrecy to protect ongoing investigation | Seal on extension motions denied; unseal allowed for those documents |
| Whether the public has a right to the records given dismissal and lack of adjudication | Relator relies on limited FCA context and non-adjudicatory posture to maintain seal | Public access serves accountability; dismissal does not negate public interest in records | Public access outweighed sealing; case unsealed in its entirety |
Key Cases Cited
- Under Seal v. Under Seal, 326 F.3d 479 (4th Cir. 2003) (presumption of public access can be overcome only by significant countervailing interests; FCA context not warranting permanent seal)
- Bon Secours Cottage Health Servs. v. United States, 665 F.Supp.2d 782 (E.D. Mich. 2008) (no permanent sealing where government declines to intervene; strong public access presumption)
- Mikes v. Straus, 846 F.Supp.2d 21 (S.D.N.Y. 1994) (protective orders to guard confidential investigation techniques; balance harm vs. need for disclosure)
- Yannacopolous v. General Dynamics, 457 F.Supp.2d 854 (N.D. Ill. 2006) (disclosure appropriate for routine matters; protect non-parties and investigative methods when weighing seal)
- Erickson v. Univ. of Wash., 339 F.Supp.2d 1124 (W.D. Wash. 2004) (unsealing appropriate where documents reveal routine investigation rather than sensitive methods)
- O’Keefe v. McDonnell Douglas Corp., 902 F.Supp.189 (E.D. Mo. 1995) (denying seal if documents reveal routine investigative processes; protect only substantive details)