More on the Use of 'Qui Tam' Lawsuits Against Big Tech

By David North on October 29, 2021

If the government won’t pursue immigration law violations, there is an awkward way for citizens (aided by a law firm) to seek justice. We have mixed news today about how two small law firms and a former Big Tech worker are faring in one such case in a federal court.

'Qui tam' dates back to our Civil War, when there was a lot of war-profiteering happening in the North. Congress (on the Union side) passed the False Claims Act, which allows citizens to sue organizations seeking to cheat the government; if the citizen proves his or her case, the citizen stands to earn a lot of money. We have written about how this works, or doesn’t work in the immigration field over the years; regarding an earlier stage in this case, and a different one, years ago.

Again, this is one of those instances in which the violation of the immigration law, per se, is not the issue; it is the question of whether the federal government was cheated financially because the employer — the mighty, India-based Cognizant — used cheap B-1 and L-1 visas when it should have used the more expensive (and more appropriate) H-1B visas. The former visas do not have numerical ceilings, the H-1B visa does.

The case was in the news because Cognizant sought to have the U.S. Chamber of Commerce file an amicus brief in the case. For reasons this non-lawyer does not understand, the whistle-blower’s lawyer objected. Earlier this week a federal judge ruled that the Chamber could file such a brief, and this was the aspect of the case that Law360 focused on.

My sense is that the firms on the workers’ side of the issue (Law Offices of Jonathan Rudnick LLC and Kotchen and Low LLP) wasted their own time and, more importantly, that of the judge by objecting to the amicus. Who cares if the fat cats’ lobby weighs in on the side of one of the fat-cat corporations?

The good news in the case for us is that the judge ruled earlier against a motion by Cognizant to dismiss the case on the grounds that its visa selections and judgements were appropriate and should not be subject to a trial. The other good news is that the qui tam lawyers are still in there pitching.

The whistle-blower or, more formally, the “relator” in the case is Jean-Claude Franchitti, a former assistant vice president of Cognizant. The case number in the federal courts’ electronic reporting system, PACER, is 3:17-cv-06317. It is before the U.S. District Court in New Jersey.