On Thursday CNN published
my iReport, which asks: Who violated a court order to leak the Lance Armstrong story?
It’s a head scratcher for me. As I said in my first blog entry on the
Armstrong whistleblower case, the case was under seal when someone talked to the Wall Street Journal
and dished some details about what the lawsuit said and about the settlement
negotiations between Armstrong and the Government. The False Claims Act
requires the whistleblower to get a court order sealing the case –
meaning that a court had ordered that no one could discuss the case. So
who leaked the story to the press? And why?
The only people who should have known about the suit were: Landis and his
lawyers; Armstrong, the two other defendants and their lawyers; the Government;
and the Court.
My guess is that it’s not likely Landis would blab. Landis has spent
years getting the Government interested in the case. If he leaks the case,
the Government may try to argue that he should get a smaller percentage,
or even no percentage. Why would he risk that now, when he is so close?
And why would a federal judge violate his own order by going anonymously
to the press? After all, the judge could lift the seal at any time. And
I cannot picture any law clerk or legal secretary violating an order from
the judge for whom he works.
So that leaves the defense side and the Government.
Could an individual Government employee have gone rogue and spilled the
beans? I would lean toward thinking that is pretty unlikely. The folks
who work for DOJ sign up to enforce the law. They tend to be very disciplined
people who follow the rules, not break them. And even if one rogue government
employee were willing to risk his job for 15 minutes of fame, the report
was made anonymously. Where’s the fame in that?
Could the DOJ be intentionally violating the order in order to leverage
the current publicity to pry a larger settlement from Armstrong? But how
would that work? Could the Government be asking the judge to gag Armstrong
before the Oprah show airs? But they have not done that?
The article does say that according to “people familiar with the
matter”, “Justice Department officials have recommended joining
a federal whistleblower lawsuit.” But that tidbit does not really
implicate the Government, because if the Justice Department has to announce
its decision by Thursday, and if DOJ is in the middle of negotiations,
then almost certainly the whistleblower and the defendants know that DOJ
has approved intervention.
But on the other hand, why would the Armstrong side leak the story about
the lawsuit to the press? If they did do it, they sure took a big risk.
I’ve seen a federal judge mad at one of the sides in a lawsuit (thank
goodness it wasn’t mine), and it wasn’t pretty.
I’ve wracked my brain trying to figure out how revealing the lawsuit
to the press would help the defense team. Maybe Lance Armstrong wants
to get in the first word about the case on his Oprah interview? Surely
he won’t respond directly to questions, but perhaps he could obliquely.
Maybe he talked about the suit in the interview (which was taped earlier)
and realized he should not have, and the press leak is an attempt to confuse
the issue of how the information leaked? If so, it’s a pretty poor
attempt, since everyone can see the timing.
Is the leak an attempt to set up a legal argument? Does Armstrong want
to argue that the information has been “publicly disclosed”
so that Landis cannot qualify as a relator? But even if Landis could not
be a relator, the Government still could continue on with the suit. Plus,
the “public disclosure bar” applies before the suit is brought,
not afterwards. Does Armstrong want to reduce the damages by saying he
brought the fraud to the attention of the Government? It’s way too
late for that.
But for that matter, I’ve found the entire Oprah interview a great
mystery. With this suit pending, why would Armstrong go on national television
to admit what he has done?
We know that Armstrong is in negotiations with the Government. Perhaps
Armstrong’s side thinks that if he confesses, public opinion will
shift his way and he will be able to settle the qui tam lawsuit with the
Government on more favorable terms? But then I argue back to myself –
where’s the incentive for Armstrong to violate the order when he
could just postpone the Oprah interview until after the judge lifts the
seal on the case?
Have any ideas about who did it? Post them on my CNN iReport,
Who Leaked the Lance Armstrong Lawsuit Story? Because I just can’t figure it.