United States: District Court Holds False Claims Act Applies To Employee Allegedly Terminated For Engaging In Protected Activity Against Unrelated Former Employer

In a matter of first impression, the U.S. District Court for the Western District of Pennsylvania in Cestra v. Mylan Inc. No. 15-0873 (E.D. Pa., May 22, 2015) held that the antiretaliation provision of the False Claims Act applies to an employer who terminates an employee for engaging in protected conduct against an unrelated entity. Although the plaintiff conceded his prior qui tam action against a former employer was wholly unrelated to the immediate defendant, the district court held that a plaintiff does not need to engage in protected activity against the actual defendant, just that the defendant retaliated against him as a result. The district court also recognized, however, that it was the first court to construe the False Claims Act's ("FCA" or the "Act") antiretaliation provisions in such a way, and therefore granted immediate interlocutory review of its order before the U.S. Court of Appeals for the Third Circuit.

The Complaint and District Court Decision

In 2010, the plaintiff filed a FCA claim against his then employer, Cephalon, Inc. ("Cephalon"). The original complaint was filed under seal and the realtor only identified in subsequent pleadings as "John Doe." In 2011, the plaintiff began working for defendant Mylan Pharmaceuticals, Inc. ("Mylan" or the "Company"), which is entirely unrelated to Cephalon.

On July 10, 2013, the United States unsealed the pleadings in the plaintiff's case against Cephalon, and the plaintiff's identity as the realtor in the case became public knowledge. Approximately seven months later, the web page of Café Pharma, an informational website for the pharmaceutical industry, posted a link to an article regarding the Cephalon case that identified the plaintiff as a "whistleblower." The plaintiff alleges that upon seeing the article he immediately emailed his supervisors at Mylan, assuring them that he was not engaged in any form of whistleblowing against the Company. The plaintiff also alleges that his repeated requests to meet with his supervisors to discuss his case against Cephalon were ignored and he soon became ostracized by the Company. In May 2014, Mylan terminated the plaintiff's employment citing performance issues.

On June 24, 2014, the plaintiff filed a FCA claim against Mylan in a Pennsylvania district court, alleging that Mylan violated the antiretaliation provisions of the FCA when it terminated him for bringing a qui tam action against his former employer. Mylan then filed a motion to dismiss, which was heard by a Magistrate Justice. On April 6, 2014, the Magistrate issued a report recommending that the court deny Mylan's motion to dismiss, reasoning that the plaintiff need not plead that he engaged in protected activity against Mylan, but only that he engaged in protected activity under the FCA and that Mylan terminated him as a result.

Mylan then filed a timely objection to the Magistrate's Report and Recommendation with the district court. Mylan alternatively filed a motion for certification pursuant to 28 U.S.C. § 1292(b) requesting the court certify its order for immediate appeal to the Third Circuit if the court adopted the Magistrate's Report and Recommendation.

On May 22, 2015, the district court adopted the Magistrate's Report and Recommendation, and denied Mylan's motion to dismiss. In its reasoning, the court stressed that the antiretaliation provision of the FCA is remedial in nature and that courts should therefore construe it broadly. The court adopted the Magistrate's interpretation that the antiretaliation protections should not be narrowly read to apply only in instances where a plaintiff engages in protected activity directly against the defendant. Rather, the court concluded, entities may be liable under the FCA any time they retaliate against an employee for engaging in activity that is defined as protected conduct under the Act. At the same time, however, the court also recognized that "[t]he parties have not identified, and the court's research has not yielded, any authority in which a court has held that the antiretaliation provision of the FCA applies to an employer who fires an employee for engaging in protected conduct against an unrelated entity." As a result, the court also granted Mylan's motion for immediate appeal and granted interlocutory review of its order before the Third Circuit, where the matter remains pending.

Impact on Employers

The Third Circuit's pending decision on this matter may significantly impact companies' overall exposure to FCA retaliation claims. If the circuit court upholds the district court's order, there is an argument that any individual who ever filed a qui tam action against an employer could in essence be in a perpetual state of protected activity. This means companies could now be exposed to FCA suits not just from whistleblowers against their own entities, but also those who blew the whistle against wholly unrelated companies in years past. Moreover, if an employee's previous protected activity need not have any relation with its current employer, some companies may not even be aware of this additional litigation risk when making personnel decisions.

It is also important to note that the plaintiff in Cestra v. Mylan, Inc. was a current employee, as opposed to a job applicant. In contrast, in Vander Boegh v. EnergySolutions, Inc. 772 F.3d 1056 (6th Cir. 2014), the plaintiff claimed that he was denied a job because he engaged in FCA protected whistleblower activity at a prior job. The Sixth Circuit dismissed the claim, holding that the plain language of the FCA's antiretaliation provisions only apply to "employees" – not job applicants. That being said, Cestra and other court decisions throughout recent years have commonly stressed the exceedingly "broad remedial scope" of federal whistleblower laws, and employers must remain cautious whenever dealing with these statues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Edward T. Ellis
Joseph A. Lazazzero
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions