When Is A Lawsuit By An Employer Considered Retaliation?

In Greer-Burger v. Temesi, 2007 Ohio 6442, 2007 Ohio LEXIS 3049 (Ohio, Dec. 12, 2007), the Ohio Supreme Court in its Greer-Burger decision, rejected the lower court's holding that the mere act of filing a lawsuit by an employer is per se retaliatory. Instead, the Ohio Supreme Court's majority held that the employer must be afforded an opportunity to show that there is an objective basis for the lawsuit. The Supreme Court's litmus test for establishing an objective basis, is that the employer must demonstrate that its case can survive a motion for summary judgment. In other words, the employer must establish that there are genuine issues of material fact, such that summary judgment could not be granted, in order to establish that its lawsuit is not actionable retaliation. The dissent would hold that the filing raises retaliation as a prima facie issue to be rebutted, and that the employer's rebuttal must show that the employee's previous discrimination claim was totally without merit, i.e., frivolous.

One must question whether either the majority or the dissent is correct. Some would argue that if the employer has a claim against the employee, it should be allowed to pursue it unless it is frivolous and, of course, the employer's motivation for filing is retaliatory. I had thought that BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002) had suggested that even if the employer filed the action out of spite and anger because of the employee's protected activity, the right of access to the courts was so paramount that such an employer could proceed so long as the lawsuit was not frivolous. If this were to be the test, then even though the employer's case might not survive summary judgment, it could be a far cry from frivolous. It would seem that the Ohio Supreme Court debated these difficult questions with blinkers on that narrowed the scope of legitimate debate on the question.

False Claims Act - Public Disclosure - Off-Label Drug Prescriptions

Last week, I referenced the increasing incidents of False Claims Act (FCA) cases based on off-label drug marketing. The First Circuit in U.S. ex rel. Rost v. Pfizer, Inc., 2007 U.S. App. LEXIS 26486 (1st Cir., Nov. 15, 2007) was such a case, and raised head-on the question whether the defendant-company's self-disclosure only to the government, without further disclosure, is a "public disclosure" within the meaning of the FCA, specifically section 3730(e)(4)(A). The First Circuit, Judge Lynch writing, held: "The mere fact that the disclosures are contained in government files someplace, or even that the government is conducting an investigation behind the scenes, does not itself constitute public disclosure."