The U.S. Government has paid more than $4 billion to whistleblowers under the False Claims Act since 1986.

The Federal False Claims Act authorizes individuals to bring a cause of action on behalf of the government to recover money lost due to fraud or other misconduct.  Whistleblower lawsuits help our government recover billions every year.  The government rewards successful whistleblowers for bringing fraud to their attention.  In Fiscal Year 2013, whistleblowers across the nation were awarded more than $300 million as a result of their qui tam lawsuits.  If you have evidence of a fraud against the government, contact one of our False Claims Act lawyers.

Cases Typically Involve:

Health Care Fraud – The health care industry is currently the largest source of government fraud litigated under the False Claims Act.  When companies improperly seek reimbursement from Medicare, Medicaid and other government health benefits programs, it will create liability if they do so knowingly or fail to report overpayments they discover.  One of the hottest areas for cases right now is pursuant to the Stark Law and Anti-Kickback Statute.

Government Contracts – The second largest source of False Claims Act claims is generally the defense industry.  The military purchases equipment and services from a variety of businesses.  When a company in the defense industry makes misrepresentations or submits fraudulent bills, it becomes liable to the Federal Government under the False Claims Act.

Mortgage Fraud – Financial institutions have been subject to government investigations and liability recently under the False Claims Act for fraud committed against federal housing programs.

Small and Disadvantaged Businesses – The U.S. Government gives incentives to small businesses and disadvantaged business owners on government contracts.  Fraudulent statements on the application or certification create liability.

Davis Bacon Act – Federal contractors covered by the law violate the law when they do not pay prevailing wages or submit fraudulent wage statements to the government.

Customs Fraud – Misrepresentations on customs declarations regarding the value of imports or the origin of goods that lead to underpayments of duties create liability.

Buy American Act (BAA) / Trade Agreements Act (TAA) – Federal contracts for certain goods place country of origin restrictions on the manufacturing of the final product.  The company is not permitted to fraudulently certify their items are Made in the USA or not made in certain prohibited countries in order to receive government funds.

Federal Crop Insurance Program – The government guarantees crop insurance made by companies.  Fraudulent applications for insurance violate the False Claims Act.

Education Fraud – Certain marketing and recruiting practices by for-profit colleges are prohibited by Title IV of the Higher Education Act.

The Federal False Claims Act Process

A complaint is filed under seal in an appropriate Federal District Court.  The Department of Justice is notified and investigates the allegations in the complaint.  If the Justice Department decides to intervene, they will prepare and file their own complaint.  If they decline, you are entitled to proceed with the litigation on behalf of the government.  A relator is not entitled to bring a lawsuit in several situations.  An attorney at McEldrew Young can help you determine whether one of these exceptions apply to you.

Criminal Conduct – A relator is barred from bringing suit under the False Claims Act if he or she has been criminally convicted for their role in the misconduct at issue.

First to File Bar – A whistleblower cannot proceed with qui tam litigation if another relator has already filed a complaint concerning the fraud.  The lawsuit also can not proceed if there is already a government civil or administrative money proceeding.

Public Disclosure Bar – A False Claims Act lawsuit cannot be based upon information that has already been disclosed to the public unless the relator is the original source of the information.

Retaliation Protections

The Federal False Claims Act offers protection from retaliation to whistleblowers bringing qui tam lawsuits under it.  Section 3730(h) prohibits adverse changes to the terms and conditions of employment as a result of lawful whistleblowing activities to stop violations of the False Claims Act.  If an employee is discriminated against as a result of their whistleblower status, they are entitled to bring a cause of action in federal district court for double back pay, interest and compensation for special damages such as litigation costs and attorneys’ fees.  The anti-retaliation provisions of the False Claims Act are available to whistleblowers within three years of the date of retaliation.  Other laws, including state and local False Claims Act legislation, may provide additional anti-retaliation protections for the relator bringing a qui tam complaint.

Confidentiality under the False Claims Act

Lawsuits under the Federal False Claims Act begin under seal.  The identity of the whistleblower is revealed only to the government investigators and the Court.  The whistleblower must maintain the confidentiality of the lawsuit as well.  After the government has investigated the case and made a decision regarding whether it will intervene, the lawsuit is unsealed and the identity of the whistleblower becomes known to the public.

The Process of a False Claims Act Case


Initial Consultation

When we are contacted by a whistleblower, we engage in an initial phone call or in-person meeting (depending on the location of the individual and the matter to be discussed). This initial conversation is confidential and there is no cost or obligation. We use this time to ensure that there is mutual interest in proceeding in an attorney-client relationship.

Our analysis usually involves consideration of the merits of the case, the evidence possessed by the whistleblower and the specific matter at issue. We also endeavor in this initial period to answer questions from our potential client concerning the case and the events that will follow in order to provide them the information they need in order to decide whether to proceed.

Retainer Agreement

Our law firm does not represent individuals without a written and signed retainer agreement. This agreement sets forth the conditions of our representation and the contingency fee which our firm will earn in the event that our legal representation is successful and our client recovers a financial benefit.

Once we have a signed retainer agreement, we will begin to examine the evidence and prepare the pre-filing disclosure, complaint and relator’s statement.

Pre-Filing Disclosure

Prior to filing the complaint with the court, the U.S. Attorney’s office is contacted by whistleblower’s counsel to be informed of the violation of the False Claims Act. This allows the government to begin its investigation.

Congress, through the 1986 amendments, intended the requirement to encourage the potential relator to provide the Government with their information at the earliest possible moment. In practice, the Pre-Filing Disclosure is given to the federal government shortly before the filing of the complaint.

There are few rules for the form of the Pre-Filing Disclosure. In some cases, this may be done over a short phone call. In others, an advance copy of the Complaint or the Relator Statement is provided.

The Pre-Filing Disclosure is an integral part of rebutting a claim by a defendant that there has been a public disclosure. In order to qualify as an original source and proceed in spite of the public disclosure, the FCA requires some individuals to have made a disclosure to the Government prior to the filing of a qui tam complaint.

The Complaint
The Federal Rules of Civil Procedure established a system of notice pleading which requires a short and plain statement setting forth sufficient information to provide the defendant notice of the allegations of the case and the court sufficient information to make the lawsuit seem not implausible.

However, Rule 9(b) governs allegations of fraud and applies to aspects of a False Claims Act complaint.

It is important not to delay the filing of the complaint for too long because of the False Claims Act’s first to file rule. A relator is not permitted to proceed with a qui tam action if there is a pending complaint against an individual or company concerning the matter of the Relator’s complaint. The application of the first to file rule is a complex one when each complaint brings different allegations of fraud.

The Seal

The False Claims Act requires the Relator to not speak of the qui tam lawsuit. The seal was put in place If the Relator or his/her counsel violate the seal, there can be penalties, including potential dismissal of the relator’s qui tam lawsuit.

The Relator’s Statement

The Relator’s Statement is sent to the Department of Justice.   Attached to the document will be the evidence that the Relator possesses.

The document will also include a suggested witness list for the government to contact during its investigation as well as the information which the individual should possess.

Relator Interview

Approximately one or two months after the Complaint is filed under seal with the Court, the Relator, his or her attorneys, one or more members of the U.S. Attorney’s office and other members of the government depending on the case will meet in person to discuss the information provided by the Relator.

The States

In cases involving Medicaid fraud, the complaint is also sent to the thirty or so states which have passed their own version of the False Claims Act. The states may also decide to join the lawsuit and seek recovery of the government money lost due to fraud. In other cases, the states allow the federal government to proceed and play a supporting role as the case goes forward.

Government Investigation

Following the Relator’s Interview, the Government will undertake an investigation of the merits of the case. Depending on the complexity of the case, it may remain in the investigation stage for years. During this time, the lawsuit is on hold.

Seal Extensions

The False Claims Act specifies that the initial seal lasts for 60 days. However, the government investigation typically takes more than a year. While the investigation is ongoing, the government will file seal extensions with the court to delay the onset of the litigation until it has had a chance to fully investigate the case.

Partial Disclosure

At some point in the government investigation, the Justice Department may wish to approach the defendant to provide them a copy of the Complaint and seek settlement. The DOJ will make a motion with the court to partially lift the seal and then pursue settlement negotiations.

Circumstances may also arise which require the Relator to seek the ability to disclose the filing of the False Claims Act complaint. After consultation with the Justice Department, the Relator then moves the court for a partial unsealing which governs the manner and information of disclosure of the existence of the lawsuit.

Criminal Prosecutions

Lawsuits brought under the False Claims Act are handled by the civil division at the Justice Department. However, information which arises during the course of the investigation may lead the government to learn about conduct which violates criminal law in the United States. If criminal charges are warranted, the Justice Department may decide to pursue the criminal conviction prior to pursuit of recovery under the FCA.

Multiple Relators

If several False Claims Act lawsuits have been filed and the Justice Department believes that each individual will add to the government’s efforts to recover against the defendant, they may suggest that the Relators cooperate rather than engage in a long litigation battle regarding who is entitled to a recovery. In this case, Relators and their counsel will negotiate a cooperation agreement which divides the potential recovery.

Government Intervention

If the government discovers fraud and wishes to take control of the litigation, it will inform the court that it has made the decision to intervene. For a Relator, this is usually the best course as it puts the full resources of the United States against the corporation. Most companies will settle before trial rather than risk treble damages and the negative publicity.

Unsealing

Once the government has made its decision on intervention, the court is informed and the complaint is unsealed. If the government has decided to decline intervention and the relator does not wish to proceed, the relator may choose to petition the court to unseal a redacted version of the complaint. There are many factors involved in the determination and it is ultimately a matter of judicial discretion. If the relator wishes to proceed, a copy of the complaint is served on the defendant and litigation commences.
Counterclaims

The Defendant’s answer generally denies the allegations through a variety of language. The more concerning area for relators is the potential for a counterclaim. A defendant facing the expense of defending fraud charges may decide to take the offensive by bringing a counterclaim against the Relator. Some of the possibilities include theft of documents, defamation, or breach of contract.

Motion to Dismiss

The first objection by the Defendant to the litigation is generally in the form of a Rule 12(b)(6) motion to dismiss. If the government has intervened in the lawsuit, it has generally gathered enough evidence during its investigation to make it over this barrier.

For a Relator proceeding without the government, the motion to dismiss can present a greater challenge. Some courts will require that a relator have sufficiently specific information concerning specific false claims made in order to meet the heightened pleading standard imposed on fraud cases by Rule 9(b). This area of the law is still developing and it seems likely that the Supreme Court will consider a case concerning whether a False Claims Act complaint has been pled with sufficient particularity over the next few years due to the current circuit split.

Alternate Remedy

If the government decides to pursue a recovery against the defendant based on the relator’s information without resorting to the False Claims Act litigation, the relator may be entitled to a portion of the recovery as an alternate remedy.

Relator Share

The False Claims Act requires the government to pay the Relator in an intervened case between 15 and 25 percent of the recovery. In a non-intervened case pursued by the Relator, the FCA provides for the relator to earn between 25 and 30 percent of the amount recovered for the government.

The amount of the relator’s share is usually negotiated between the parties. If the Government and the Relator cannot reach agreement, then the dispute is settled in court.

Frequently Asked Questions

What is a qui tam?

Qui tam is an abbreviation from the Latin phrase “qui tam pro domino rege quam pro sic ipso in hoc parte sequitur”, meaning “who as well for the [lord] king as for himself sues [proceeds] in this matter”. A qui tam action allows private citizens to file a lawsuit in the name of the federal or state governments charging fraud by contractors and others who receive or use government funds.

What is a relator?

A Relator is the name that commonly refers to the whistleblower plaintiff in qui tam action brought under the False Claims Act.

Do I have to be represented by an attorney?

Yes. To bring a qui tam under the False Claims Act the whistleblower, or Relator, must be represented by an attorney. Selecting an attorney that has experience with qui tam whistleblower lawsuits and the False Claims Act is vital to protecting your interest in this complicated area of the law.

What is a disclosure statement?

The Disclosure Statement is the document that must be filed and served upon the Department of Justice (“DOJ”), and contains substantially all the evidence the Relator has in her/his possession about the allegations set forth in the Complaint.

Does it matter if the DOJ intervenes?

Because the success rate of qui tam action where the DOJ decides to intervene is much higher than the success rate for qui tam cases that do not have government intervention. However, lack of government intervention does not necessarily mean the qui tam action will not succeed. Indeed, some of the qui tam cases with the largest settlements have lacked government intervention.

Will the government take my information seriously and investigate it?

Yes, by law under the False Claims Act, the Attorney General or a Department of Justice Attorney must investigate the allegations of violations of the False Claims Act. The investigation usually involves one or more law enforcement agencies, and state attorneys general with expertise and interest.  They will participate in the investigation, and work closely with the federal agencies when state agencies are victims.

What happens at the conclusion of the investigation?

The DOJ will either (1) intervene in one or more counts; (2) the DOJ will decline to intervene in one or all counts; (3) the DOJ will move to dismiss the Relator’s Complaint; (4) the DOJ will settle the qui tam action with the defendant prior to intervention or in conjunction with the intervention; (5) the DOJ will advise the Relator of their intention to decline intervention.

How much money could I get?

If the DOJ intervenes and recovers money through a settlement or trial, the whistleblower is entitled to receive 15-25% of the recovery. If the government does not intervene and the case continues then the whistleblower reward is between 25-30% of the recovery.

To report money lost by the U.S. Government because of fraud: