well your argument first this morning in case fifteen five thirteen state farm fire and casually company versus united states acts real speak this omen mr chief justice and may it please the court the false claims  asks very little of a private key tamary later who would step into the government's shoes file under seal serve only on the government and maintain the c l until it is lifted respondents here violated that requirement they leaked the contents and existence of their suit to the associated press a b c and the new york times and yet under the rule adopted by the court of appeals they suffered no consequence whatever for that violation this being tipped off and the government who i think you please the primary and concern of congress to be protected the government then would be left with the choice of be the think that congress intended a statutory bargain that does not give the government absolute discretion to decide whether the seal has been violated let me explain first what the statutory bargain is the statutory bargain set forth in thirty seven thirty authority of the government it gets to see a share in any award the government might obtain but on condition on a mandatory condition that it abide by the simple requirements i in having the seal maintained the seal is under the eighty six amendments it's required in order that the government may investigate the claims decide whether to intervene and also pursue any criminal investigations that might have already commenced or be commenced in light of the complaint but that doesn't just protect the government's discretion it protects the operation of the statute and the way it does that is it gives the government a period of time in which it may decide to do any of three things intervene and conduct the ki chan case declined to intervene or as unhappy as happens in very many cases settle the case with the defendants before the lifted and as the second circuit said and pile on which we think gives the best version of a discretionary test the incentives for settlement which benefits the taxpayers in the treasury will often disappear if a potentially meritorious complaint is filed and a defendant is willing to reach a speedy and valuable settlement with the government in order to avoid unsealing so you're arguing you're arguing the government's interests but it rings a little hollow when we see that the government's on the other side yes mr chief justice i'm in a difficult position are showing that we serve the government's interest better than the government suggest but let me say why i think it's very important not to see this as something that is the government seal to be maintained at the government's discretion when congress sets a mandatory precondition to suit this court has always held that the requirement merits dismissal halston as the case most clearly on point honor the government here is free to intervene even after the relator dismissed no matter how late it is in the suit the provision of thirty seven thirty  of thirty seven thirty pm allow the government to intervene for good cause later and thirty seven thirty one allows the government to have its late intervene suit relate back to the time of the relator complaint so there's no statute of limitations problem the government police sorry sorry justice cannot please just i just want to make the point that if the government has already intervened which it didn't do in this case because three years of investigations found no fraud if the government has already intervened then justice ginsburg dilemma will never occur the government is already conducting the suit so the only cases we're talking about in the small universe of cases that involve violations in the first place are not intervened cases in which the government might not of intervene but want to do so later in my point is there's no prejudice to the government or the treasury because the government can come in later relate back and re conduct the suit if it finds it's a meritorious case and you know if you just you mentioned holstrom a couple of times yes you're on and rely on it heavily the briefs but also has very different statutory language holstrom says no action may be commenced unless a condition is met and similarly in thirty seven thirty the statute uses language that makes it it's clear dismissal is appropriate when a mandatory requirement is is not met it says the court shall dismiss an action or claim it says a no event may a person bring an action it says the court no court shall have jurisdiction all of that way of free all of those freeze and indicate what happens when a requirement isn't satisfied but there's no such language with respect to this requirement i mean it's a mandatory requirement but  but it doesn't say what happens if the requirement isn't satisfied and that makes it very different from holstrom and from the other language in section thirty seven thirty that is correct your honor we do not have an express statement of what the remedial sanction is for a violation of the seal but rick roe was silent too on the remedial sanction for a violation of the pre filing notice requirement and yet this court nonetheless held the mandatory precondition not being met dismiss come in under thirty seven thirty c three and have its complaint relate back to the relator so it's similar to the plaintiffs and but to answer justice if justice kagan's question the only difference between our case and the whole string type pre filing waiting period comes from the peculiarities of the key tam statute and in particular from the peculiarities of the key time statute that benefit relator what i mean by that is what was the one nine hundred eighty six bargain congress wanted to encourage or later to come forward and so it said we're going to give you new larger bounties and financial incentives but we're worried that if we encourage you to come forward you might impair government investigations but we worry if we make you wait first before you file you might lose your right to sue you might have some other relator beat you to the post and file first or the government might file and then you'd be out of luck so in order to protect the relator is the key tam statute does it backwards from  district court and the court of appeals applied the wrong standard and terminate not to dismiss here as to the first what would you say about the case where the disclosure is very limited seen by only one person let's say it was inadvertent it was not done in bad faith and it causes no harm you would say a dismissal is required even under those circumstances not necessarily your honor we think that dismissal is required where a disclosure rises to the level of a violation but as some district courts in per se dismissal jurisdictions have held we cite the on the care gayle case that's in the sixth circuit which follows a per se dismissal rule the court found that a mere private disclosure to a spouse may not a trivial disclosure may not rise to the level of a violation and your honor we think that the district courts can find safety valves in a per se dismissal rule by finding that such trivial disclosures don't in that's not the question with the same question but that doesn't sound like a per se rule than a pursue a rule with de minimus exceptions your honor but under under our alternative argument and justice breyer i'd definitely want to get to your question but under well so let me try it let me just answer finish the answer by saying we argue in the alternative that if there's going to be a discretionary standard a can to traditional equitable discretion then bad faith should be the primary factor and harm should be measured by sorry the severity of the violation should be measured by what the related or dead or the related council did at the time of the disclosure not the consequences its character not its consequences  hurt really at all some are sort of accidental some are certainly not bad faith and they didn't cause much trouble really why dismiss the case and once you begin to agree this case so what we think is the better rule is the one that comes from the second circuit not the ninth and fifth circuits and that rule would look to bad faith as an important factor sometimes a dispositive one and there's no question that the conduct here was in the not correct on this record the fifth the fifth on the record does it show they didn't know you're aware that they didn't know correct your honor and no no i don't correct was the question either they did know it or they didn't know it what does the record say about the the fifth circuit assumed that the lawyers conduct could be imputed to the relator but did on the question of whether they knew it your honor we think that no i did you never ask them or the lawyer well your honor we did ask them whether they authorized the conduct they said no there's no do so here we have ambiguity as respect to that we would i write an opinion that said lou hunt factors are some factors life is complicated there a kinds of factors and these factors affect the basic fairness of the situation which is something the judges should look to as well like many many many decisions this is conferred upon the supreme  upon the district court to make a fair decision and in terms of sanction in light of the circumstance to be reviewed by abuse of discretion your honor in this case it was an abuse of discretion not to dismiss your i don't have to worry about this case you do you and i have to worry about the bright standard too right your honor and let me suggest respectfully why you should at a minimum vacate and remap and for resolution of any remaining fact questions about imputation or the like and that is because the articulation of the standard by lew hon the court below and courts following this toothless test basically have invited open season on deliberate so i'm not quite sure your fallback argument is before us it is your honor because dismissal should have been granted under a proper discretionary test if you reject their per se rule and we think with respect to did you ask for the application of dismissal we asked for dismissal and we asked for dismissal urging it at at a minimum a test that would take bad faith into account if the most important feature of the decision below is it gave the back of its hand to deliberate bad faith conduct so if we go back and i haven't done this and look at the way the case was litigated is is there an argument from you that says ok if you're not going to automatically dismiss as we argue you should do this as a second alternative yes there is your honor we preserved at every stage the argument that if there is no per se dismissal there should be dismissal based on a proper balancing test weirds that a balancing test should number one make bad faith a primary but again you didn't ask for anything other than dismissal that is correct your honor attorney discipline would do no good in a case for mr scruggs had already been indicted and disbarred for reasons having nothing to do with his deliberate c l violations here and monetary sanctions with respect which are touted by my respondents in the government as the solution are not going to have any deterrent effect in some ways and i too have one fundamental factual question yes your honor as i'm reading the record the us the circuit the fifth circuit took the position that the only disclosure that would violate the seal requirement is the disclosure of the existence of the lawsuit it basically said that disclosing the underlying facts is not a violation of the sealing requirement so how did the m disclosure of the lawsuit hurt you as opposed to what i think hurts reputation is the nature of the allegations if the allegations were going to come out no matter what was how and why and when was there an actual disclosure of the existence of the law school as opposed to just sharing with others what i understood to be the it then tree affidavit which just sets forth allegations so you're honor there is no question here that the existence of the complaint under the false claims act was literally revealed the evidentiary disclosure supporting the complaint which mirrors the allegations of the complaint itself was emailed to three national news media to the a p with the caption on the front but in all instances with the signature block saying attorney for relator in this false claims act and with the certificate of service on the attorney general in the u s attorney so this is the rare case where you do not have to consider any factual ambiguity about whether the complaint itself was distributed to the public a b c the a p and the new york times are the public second your honor there may be other cases unlike this one in which it's a harder case in which maybe someone just talked about fraud in the air but i thought the question was suppose these play games didn't reveal the complaint at home but they described new radio show and a t v show what they understood to be state practice so the information came out but not that they had the complete your  honor that would be a different case you haven't reached it you don't need to reach it here a divided panel of the fourth circuit with a very strong dissent by judge gregory said maybe there maybe there is a first amendment right to the solemn for the moment that there is a first existence and content of the complaint itself then there would not be a violation and the per se rule would apply which is why our per se rule is now or in less absolute than than my friends on the other side of portrayed it but your honor there may be times when a revelation of fraud and not the words here's are false claims act complaint which was the case in this record in which the revelation of the fraud was the functional equivalent of revealing the complaint if a lawyer goes up on the courthouse steps comes out on the courthouse steps and talks about fraud and then points to his briefcase and says well i can't if somebody says well did you file a complaint no i can't talk about it there might be instances in which the exercise of first amendment rights becomes the functional equivalent of fraud and the district courts can work that out in deciding whether a disclosure rises to the level of a violation but you don't have to face that here what you need to face here is a case where lawyers violating every possible obligation under the statute as well as their ethical obligations and whose conduct should be imputed to the real hitters as the fifth circuit assumed leaked the actual complaint in its legal content well what are the national news media you said your test would put it would make bad faith primary what exactly does that mean i mean take a case where there was bad faith but in fact it was also a pretty minor breach that was not likely to cause any harm and in fact did not cause any harm and the government comes into the district court and says it's not in our interests for this case to be dismissed why should the court nonetheless dismiss the case your honor under our balancing test it might not on those facts bad faith can't be dispositive if the other factors overwhelm it but here the well then what does it mean for bad why do you say is it what how is it first among equals why isn't it just something that  district court should take into account as this district courts took into account your honor we don't think the district court or the court of appeals did take bad faith into account and if you look at the government's brief it page twenty eight you'll see that the united states didn't seem to take bad faith seriously here either that is a is an error that as a matter of law in the application of the balancing test and we think bad faith plus severe harm makes an easy case for dismissal here let me say why the severe harm should be assessed differently than the fifth circuit did the fifth circuit here this took an ex post rather than an ex ante approach it said as used just suggested in your hypo let's look at the consequences did anything bad happen the statute asks you to take an ex ante perspective it determine when when one factor is the seriousness of the violation presumably one measures the serious of seriousness the violation by asking whether the violation is likely to cause harm ex ante so it's really looking to both that's calling them different things but it's saying we're going to check out the seriousness of the violation whether it's likely to produce harm what the risk of harm is and we're going to ask in ways we ask in the law all the time did in fact cause that harm your honor we don't tend to let drug dealers off if the thing they think is marijuana that they're selling turns out to be a regen oh we do care about state of mind at the time and we don't just look to the accident or happenstance that it didn't cause harm in fact here the courts by looking to the consequences failed to describe as severe and the government actually calls this a minor violation to leak the contents of a complaint to national news media if you affirm you are sending a message to every r lator in the country in key temp suits and their counsel leak away with no consequence and just a sort of my our monetary sanctions to complete the answer before are not going to be effective the bibby case touted by the government at pages twenty three to twenty four of the government's brief was a case in which the relator share was reduced from forty three million dollars to forty one point five million dollars as the monetary sanction that will not be an effective deterrent can you tell me  or a better version of the discretionary rule then the toothless one adopted by the court of appeals below a court ordered dismissal is the appropriate sanction for a bad they leak to national news media and justice  if there is a primary factor why shouldn't the primary factor just be what the government wants in other words why shouldn't this be given that the government is the beneficiary of this provision why shouldn't we give very significant discretion to the government your honor  a case of pure statutory construction there's no need to defer to the government second actual harm is very hard to prove how can the government know if an unscrupulous defendant has destroyed evidence or are sent witnesses out of the country and lost most important your honor the government  never says it's been harmed it has no incentive to do so there's only one case that we found in thirty years of cases in which the government admitted there was actual harm and that is not a basis on which you should police this requirement i'd like to should say it was chief justice and may it please the court the question this case is is the first half hour illustrates not really whether courts will punish and deter violations of the false claims act still requirement but whether they will do so in a way that is counterproductive to the government's interests or whether they will instead impose other sanctions that would benefit the government allow cases to go forward and simultaneously create an effective deterrent the message that you're actions filed state farm gave you an appendix with their petition where they list all the cases that they found that talk about the seal that appendix has forty eight cases and i'm only thirty five actually involved see all violations and of those you know an even smaller fraction only six involve findings of bad faith or rule has been the rule in this country since one thousand nine hundred five and in that time we're talking about a handful of violations in fact strangely enough the circuit that opinion in this case it will change the legal landscape and i would appreciate it if you would respond to one of the arguments ms sullivan made toward the end which is that if we issue an opinion that affirms in this case where they are were which involved the type the greatest degree of bad faith in this in violating the seal requirement that is really possible imagine that will stand for the principle in future cases that even in an instance in which there was complete bad faith dismissal is not appropriate dismissal is can't can properly be rejected sure  so there are there are two ways i'd like to answer the question you know first i want to answer just directly on its own terms and then i do have some question issues about the premise you know directly on its own terms i think it would be very easy for you to write an opinion to say nothing in this opinion did in this case we think it would have been entirely appropriate for him to have been referred to bar counsel for him to have been disqualified as the relator as attorney for a substantial monetary sanction to be levied against him in this case there are factual findings right it's not just us hypothesizing there's no ambiguity on this factual findings that are not clearly erroneous that the relator themselves were not culpable did not know about these actions and the ordinary rule in cases where a lawyer in cages  usually held accountable for the actions of their attorneys to be sure they are ordinarily when the attorneys acting within the scope of representation so if an attorney shows up and doesn't show up to a hearing if an attorney files or doesn't follow document on the client's behalf the client has to live with what's in those documents or with that nonappearance but when attorneys engage in this sort of extra judicial chicanery you know without their clients knowledge the ordinary rule is you don't dismiss a case with prejudice that's true in the vast majority of circuits at least in this court hasn't really gotten into that but that is the ordinary rule and it makes sense especially in that concern is here right because as is the statute makes clear is congress made clear nine hundred eighty six the government is also an interested party in this case and an innocent one that will suffer if dismissal is done so i think you can check you know the potential that it will be open season where the some well works well worded and strongly worded  no you see i think this is done to protect the government's investigations but the consequence of this is that there is a document somewhere in the court that says joe smith is a defendant in what could be a very harmful case to joe smith if joe smith is innocent for example it's unjustified where does he read about that in a complaint you know he reads about it in the national press now that's a harmful thing and it and seals are not just this case there are national security cases privacy cases trademark cases all kinds of business cases so it is a serious thing when someone deliberately breaks a court seal and reveals the contents to the national press well it's not just the department that has an interest in this it's the united states judicial system that has an interest in this and that's what poses the problem and your opponent here is saying when you get to the bottom of it given the seriousness of what went on this is to light a sanction at least that's how i'm seeing it and i would appreciate your comments on that absolutely so you know we don't diminish the seriousness of seal violations at all but i think all of the examples you gave justice prior really illustrate that what we're talking about here is a regime where district courts for ages have applied discretionary inherent powers type rules or in mr the federal rules of civil procedure and come up with case specific appropriate circumstances appropriate sanctions based on the circumstances of each case which is exactly what the district court did in this case the district court was not blind to mr scruggs as bad faith took it into account completely but understood that there were intervening facts here and you know i think also as we talk about how to proceed forward with this case you know it's worth just pausing for a moment on on what's happened since you know this case now it before you want to get a  to this because however this case got here it's here and so viewed in your legal framework it's most favorable i can read to you i can read your opponent is saying look say something and do something like remained it that realize it makes people realize this is a very serious thing though of course i think you are right in saying this  kind of thing that district courts do as part of their job waiting various factors but what would you want to add to say to me no he was not overly lenient here sure so let me actually go back to what would have been the second half of my answer to justice alito there are some issues with the premise that this was consummate bad faith conduct i think in one thousand nine hundred six congress made it clear that was trying to do is stop defendants from being tipped off about false claims act lawsuits that was the poll the consummate bad faith conduct would be a relator is lawyer reaching out to the defendant here what scruggs did was a little bit different although he sent the evidentiary disclosure to the press he sent it as now those folks happen to be journalists and state farm from this reads oh isn't it so bad because journalists have a very large platform yeah but journalists also have ethics and the ethical rules of journalism wouldn't allow them to quote or attribute material that's given to them as background and so i think there is a real sense in which the disclosures here were not intended to you know achieve the objectives that congress is trying to prohibit in the seal requirement so in that sense i think this is not the archetypical bad faith con was talking about now i am you know sensitive to your point about what about defendant's reputations we don't think congress cared about that in one thousand and six but even if it did you know and of course that is important in cases involving trade secrets and other kinds of seal orders you know the right remedy in all of those cases is damages to the defendant right it's not allow the defendant to get away with fraud against the government and so that's why i started this part of the argument by saying you know the question is really not do we deter and punish it's how are we going to do it in a way that makes sense or are we going to do it in a way that is counterproductive now state farm is upset because there's really not a great way to punish mr scruggs anymore he's been disbarred he went to jail for a while and he's no longer a part of the case in fact rug's has not been part of this case for three thousand one hundred forty eight days that's how long ago he withdrew in the intervening periods we have had mountains of discovery dozens of depositions a jury trial showing that state farm defrauded the government a verdict affirmed on appeal and now we're here and you know a lot of water is gone under the bridge since then and so you know to the extent justice prior that what you're really asking is what can we do about this particular case i think we ought to take that into account too you know there has been no misconduct now and no one accused of misconduct in this case for more than three thousand days and state farm in the interim has been proven guilty now state farm says consider it all right just ignore all of that but that's not really i think the proper application of a discretionary test you know when you think about how to apply discretion in a particular case i think we can be sensitive to reality you know we don't have to blind ourselves to  for a later that is just patently false my clients spent a decade in these careers before they spotted a grevious fraud against the government they blew the whistle they lost their very little of them when it comes to the seal require that just don't disclose it so asking a lot so state farm's position on this has morphed a little bit over time in the lower courts do they were arguing that the disclosure of the allegations or the substance of the fraud is itself you know a violation of the seal now they've kind of they kept that in footnote ten of their opening brief now they've sort of pared it back and i think now finally it's clear that they're not making taking that position and i think that that's true i think also the fact that it's very easy to comply with the seal takes a lot of wind out of the sails of their deterrence argument right as they understand the seal now mr scruggs or any attorney can avoid violating the seal by like editing a document for twenty minutes write the evidence carry disclosure that he sent to journalists very easy to just include the allegations and strip out the details that reveal the existence of the lawsuit and so you don't need a particularly and you know he doesn't get a lot of benefit in this case out of disclosing the allegations the existence of the lawsuit because it just is sort of my or pointed out the harm to the reputation if your goal is to tar and feather the defendant in the press the way you do is by disclosing that they committed fraud which all right but i mean if if if mr scruggs stands on the courthouse steps and discloses the underlying facts i think people can put two and two together and realize that he just might be filing a lawsuit i think that's possible your honor and so you know that gets back to the question of what is and isn't a violation i don't understand them to be taking that position in this case and those kind of close case situations you know they're really before you and you know is the summary of the history of false claims act still violations tells you the kind of stuff really is not happening right i think that we're talking about a handful of cases less than point three percent of all false claims that cases have ever involved an arguable seal violation and vanishingly small fraction of those involved allegations of bad faith right to the extent that state farm wants you to adopt either a blanket rule of dismissal or even a rule that is geared toward dismissal through application of discretionary factors they're really trying to throw the baby out with the bathwater here it is a you know a dramatic overreaction is especially when you know  here the government whose interests are principally affected is telling you that you don't need to do that if there are no for the question what do you make of how much weight do you think it should be given to the fact that the government doesn't think that  not exactly so for the first sixty days the government definitely can't waive the seal the seal can only be extended past sixty days of the government's motion so there is a certain amount of discretion involved in whether the seal will continue and we think it kind of makes sense to afford the government more weight after that sixty day period here the first still violation didn't have until day one hundred three and so you know we're kind of in that zone so i think the governments should say should count for a lot especially in this case as a general proposition you know we're not urging like blind  government or deference on issue of statutory interpretation but we are saying it's very clear that congress is principally concerned with protecting the government and when the government tells you and you know there will always be a balance here right the government's interests may have been harmed by a seal violation if they weren't in this case by the way that's an important point you know there's a finding about that state farm admitted you'll find a joint appendix page sixty seven that they didn't learn about the lawsuit before the seal was lifted and so you know there's no harm to the government here but there would be harm from this for a dismissal right they'll have to pick up the laboring or in a massive discovery effort to carry the case forward it will cost a lot of money it will prevent them from pursuing other frauds and those are the types of interest that congress was trying to deal with in one thousand nine hundred six because in one thousand nine hundred six it was clear that there was a tidal wave of fraud against the government more than the government could possibly hope to address using its own resources and related is were marshalled as force multipliers to help with that effort and every time the government has to take over for relator those resources come from somewhere even if the government gets a bigger recovery on the back and those resources come from somewhere and they take attention away from other frauds that the government could be pursuing and they undermine congress's objectives and so when when in the rare case where the government steps in and says dismissed this case because they've already intervened or some other it is in credit factors or they decide it's important to send a message we think courts should really listen in this case where the government is on the opposite we think they should listen to and thank you coun mr chief justice and may it please the court given the focus of the earlier portion of the argument i will i'm happy to answer questions about why the automatic dismissal rule is wrong but i will jump right to what we think the standard should be how we think the court ought to write the opinion and then how we think the court ought to dispose of this case we think the standard for how to remedy a seal violation incorporates the basic background flexibility that the courts have always had to remedy violations of protective orders and sealing orders as informed by the basic purpose of this provision which i think as everyone has acknowledged now is to protect the government by making sure the potential targets of criminal and civil investigations are not tipped off and the reason you need that in the f c a is because the filing of the complaint does something very special it triggers the duty of the government to come in and say whether it's going to intervene so that's why just the sort of my your it's not the factual allegations of fraud it's actually the filing of the complaint because that is what triggers a duty on behalf of the government to investigate and then tell the court whether it's going to intervene as far as the standard in the way the square in the right and and why does the government need that matter it needs that latitude because defendants could potentially take steps to stymie an investigation if they know that there's an actual government attorney looking at this right now because they have to look at it under the statute that was i think congress is thinking in one thousand nine hundred six hour even really take petitioner to disagree with that at this point in terms of how to write the opinion well we put let's get to that ok because do we look at the situation as it existed at the time of the violation and the risk it created or do we look at it exposed to this it did in fact happen so there's no harm shouldn't the severity be determined at the time it occurred during a completely to a news media is probably the best way to tip off the defendant it's actually more likely to do it then feeling to serve the government on time for which many circuits automatically dismiss the complaint even there that could be considered harmless if the government is serve the appropriate sanction to be and based on what evaluation let's take the general question and bring to the facts here and then talk about that question of the disparity between how courts are treating treating different kinds of violations the answer on the general question is they're both relevant under the standard articulated below and the standard we've advocated you look at both the actual harm to the government just like often attempt crimes are not punished as strongly as crimes that actually result in harm but you also look at the severity of the violation and we think there's a direct correlation between the severity and the potential harm may when you actually give the complaint to the defendant the harm the potential harms enormous if you tell one person who's not affiliated with the defendant the potential harm is less so it's relevant in that way and then of course there intent and bad faith and we don't discount that other factors could be relevant in idiosyncratic cases we think in the mind run cases those are the key factors let me just take it to the facts here it is true or you get to the facts here have this thought in my mind which is this is a court order people don't normally take it on themselves to decide whether to follow it or not if you don't like it lift it but while it's there follow it and this court order does have a possible consequence in some case that if it is violated it will cause harm to a defendant who learns for the first time that he is being sued by reading the new york times ok now that may or may not hurt some it may hurt some a lot can that be taken into account i would say in an appropriate case absolutely the court has to be concerned in working out a sanction the overall fairness of the situation and that's part of it what do you think of that i don't disagree with anything you said i think  court to take that into account it could have made a difference here because those three journalists did not leak the suit to the public so that the state farm couldn't have read about it in the new york times and what we think while these violations were certainly in bad fa what we think mitigates it in at least makes the district court means of the district court did not abuse its discretion here is that it doesn't appear as mr singh was saying earlier it doesn't appear this was designed to publicize this suit scruggs is representing a lot of clients s suits he did not for example leak this complaint to the media members he leaked the adventurer disclosures and to be sure they said that there was a lawsuit but it seems designed to have been background for the general allegations of fraud for those three journalists it wa larry i think what congress had in mind is defendants taking steps to thwart the government investigation for example destroying evidence declining to cooperate once they know that there is a formal investigation of them i think that's what congress had in mind i'll no that the senate report for those who look at that kind of thing said that they expected that the senate expected that there would not be many instances where the c e o violation would harm the government so i don't think it's surprising that this hasn't happened often and mr singh referred to the case and the reason i say you're using credit is as we've discussed lower courts have held and we agree that merely disclosing the allegations of fraud does not violate the seal so the sort of reputational harm you'd be talking about is the incremental harm from the overall focus should be courts should remedy these seal orders like they always remedy protective orders and seal orders with a healthy dose of discretion but in light of the purpose of this provision to protect the government more specifically the three factors identified by the courts below actual harm to the government severity of the violation which i think correlates with potential harm and intent or bad faith are the three key factors in a mine run case but we don't think the court should exclude that in an idiosyncratic case reputation defense reputation or other factors could be relevant we also think justice alito i think its response to your questions about making sure to send a strong message that these violations will not be tolerated we think the court could have dismissed this case here we don't say that it would have been an abuse of discretion to dismiss the case here and i think if the courts worried about sending the signal that intentional violations don't matter you could say the district court would have been perfectly within its discretion to dismiss here if state farm had sought additional sanctions the court would have been instance russian to refer counsel to the bar or to impose other sanctions but they didn't seek that here and the abuse of discretion standard we think should be particularly robust in this context because the government relies on the relator the suits not dismissed the government doesn't intervene there's a trial of however many days as mr singh said the test but what we say in the brief is deference ought to be given to the government's statement that it's been harmed so we use it for a substantial weight and we're not wedded to that phraseology but if the government comes in and says yes or no on harm we think that should be given to an actual bill but we didn't come in here and say either that or whether the suit should be dismissed we just into anything and we think as i said that the court would have been within its discretion to dismiss this case we just think this court ought to say this is a classic area for discretion mr chief justice mr levin said she raised the question of the application of her count her client raised the question of misapplication all the way through we sure don't read the petition to raise that question it would be out of the ordinary for the court to go on and say this is how the abuse of discretion standard ought to be applied but they cited pages seven hundred three one thousand and twenty six to twenty eight of the petition  we don't read those to preserve an application argument those those are making arguments like the the multi factor standard is difficult to apply i think there's one sentence on page twenty eight that maybe you can read that way we don't read that to a fairly preserved the application argument and then just to and the waiver question there's a whole other set of arguments they've made in their briefs that haven't come up at argument today about other violations that they think occurred that the lower courts held not to be violations that is extremely far outside the scope of the question presented and they haven't raised that it will argue but i guess that one is clearly waived i think  on the issue of harm to the government that i understand you say that the question is actual harm and not likelihood of harm at the time of the disclosure we think on that factor it's actual harm but we think the second factor severity correlates with potential harm so if you issue a press release saying we brought a suit the potential for harm there is enormous and then isn't it might be helpful for this court to clarify that when we're talking about the severity of the violation part of what we're talking about is the likelihood that the violation might cause harm i think would be helpful for the opinion to say that i don't think the courts below were under a misapprehension about that i mean they talked about the most of your violation being like just a blatant failure oh i'm sorry see my red lights on finish your sin they talked about the most severe violation being just a blatant filing of the complaint publicly and that is what correlates with potential harm versus selective disclosures to people that are not affiliated with the defendant thank you counsel and the solomon four minutes when you write the opinion reversing or vacating we we trust that you will clarify that actual harm to the government is not a requirement for dismissal and let me just remind you in answer to your question justice ginsburg when will the government can see an actual harm the it's not dispositive it's despise dispositive if the government says there's actual harm yes or are heavily weighted and possibly dispositive if they say it but to remind you as we point out on page twenty of our reply brief the government hasn't admitted it was actually harmed except in one case the leblanc i t t case in thirty years so you should not require actual harm we agree with the government that potential harm which is important is captured by the severity factor but that the lower courts misapplied the severity factor by looking to what risk transpired rather than what risk occurred at the time of the disclosure as to whether that was a serious risk i must respectfully disagree that there was no possible tip off here from the new statements mr singh referred you to page sixty seven and he suggested that that state farm wasn't tipped off at all with respect you can look for yourself and see state farm's lawyers saying i can't say that we didn't have suspicion we'd heard congressman taylor talking about his meeting with the riggs peace so there was a potential for tipoff here and as to whether there was harm to the judicial system as justice brier pointed out in addition to harm to the government this is a case where a gulfport jury found fraud against an insurer in the wake of the terrible losses from hurricane katrina but the government whose delegated power the are seeking to assert found after three years of copious investigation you can look for yourself on j eight to fourteen the government found that there in the words of the inspector general of the department of homeland security at j a fourteen we find no indication that wind damage was attributed to flooding or that flood insurance paid for in damages if you're concerned nonetheless about any windfall to the defendants it won't happen because the government can come in and pick up this case and relate the come back to the time of the relator is filing and finally as to the rigsby is involvement if you have any factual questions about imputation of course that can be handled on remand for the application of a proper test that makes willfulness primary severity assessed exposed and that does consider as the government conceded it should the defendant's reputational harm the government concedes that on page twenty seven and you should adopt that in your test as the second circuit didn't pile on but as to the rates b s involvement first we think as a matter of law there should be for lawyers conduct to their clients in most cases but certainly in th ham cases where the relator is cannot represent themselves pro se no one can represent the government you can't be a pro se lawyer representing the government the lower courts are clear you must have a lawyer holstrom said a trained lawyer who made an inadvertent mistake still bound his client to the failure of the pre filing notice requirement we think imputation here is easy as a matter of law but if you think it's a question of fact then if you look to mr justice prior to petition appendix sixty seven it's actually petition appendix sixty eight a where you'll find the key evidence about the related his relationship to scruggs and i commend that page to you because it did not find them not culpable at sixty a day of the petition appendix it didn't i'm the relator is not culpable it found them to have not approved authorized or initiated the disclosures that's not the same as not being intimately involved with those disclosures and i refer you to the district court's findings here in disqualifying prior plaintiff's counsel at j sixteen and twenty that there was a suite there is a sham contract i don't know many lawyers who pay their clients but this time scruggs paid the rig decisions in this docket where he finds that the relations it was a sham and you can say that it would be inappropriate an abuse of discretion not to find imputation here with respect we ask that you reverse or rematch for decision on a proper balancing test that doesn't give these kinds of bad faith violations which harm not just the government in the long run but our system of justice thank you thank you council cases submitted