Lawsuits Proceed Against Sprint, Citigroup Under New York False Claims Act

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There have been a number of big cases in New York dealing with tax law making headlines in the past few days. The False Claims Act in NY does not explicitly exclude false claims concerning taxes, as the Federal FCA does, so whistleblower seeking to bypass concerns about the IRS whistleblower program may file here as well to seek recovery for a smaller set of tax noncompliance.

Sprint

A decision from the New York Court of Appeals is allowing the State to proceed in its False Claims Act lawsuit against Sprint for damages of around $300 million because of unpaid taxes by the cell phone carrier. The company reportedly failed to collect more than $100 million in taxes from New York customers and provide them to the State. Attorney General Eric Schneiderman’s office is leading this litigation.

Citigroup

In another case out of New York State, a professor at Indiana University is proceeding with a whistleblower lawsuit claiming Citigroup owes New York State $800 million in taxes as a result of the TARP bailout. With treble damages, the amount sought in the lawsuit under the New York False Claims Act is $2.4 billion.

The case stems from a decision by the U.S. Treasury to allow deductions for corporate losses. The whistleblower published a discussion paper on the Treasury’s exemption in 2011. Citigroup applied the Federal exemption to its state taxes as well. According to the individual, the Treasury exemption was not proper under federal law and even if it was, New York was not required to honor it.

New York declined to intervene and prosecute the case itself, but the lawsuit can continue on behalf of the people of New York under the whistleblower law. If the Indiana economist is able to recover, he will be entitled to a percentage of the reward between 25 and 30 percent (standard in these types of cases).

Vanguard

To finish out the trio of big cases in New York, there is a whistleblower lawsuit against Vanguard for unpaid taxes. The case brought by a former in-house tax attorney, claims improper transfer pricing in violation of NY tax law. Last month, a report commissioned by the whistleblower’s attorneys was sent to the IRS and SEC detailing the billions owed by the company for its wrongdoing.

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NY DFS Now Investigating Bank’s ISDAfix Manipulation

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The New York Department of Financial Services is now investigating manipulation of the ISDAfix benchmark, which is used in interest rate swaps. The CFTC issued subpoenas to nearly twenty players involved with the benchmark rate and later informed the Department of Justice to look into possible criminal issues that were discovered. The CFTC fined Barclays $115 million in May in the first ISDAfix settlement.

I suspect Barclays won’t be the only one fined in these investigations, either. Potential issues for Deutsche Bank related to the ISDAfix were reportedly made public recently by a report from Germany’s BaFin. The confidential report criticized Deutsche Bank’s co-chief executive Anshu Jain for statements made to the Bundesbank during an investigation. Jain announced his resignation in early June.

This investigation may be one of the first prosecuted after the changing of the guard among New York’s financial regulator. Benjamin Lawsky announced earlier this year that he was stepping down as the head of the department in under to start his own legal and consulting business. Lawsky will be succeeded temporarily by his chief of staff Anthony Albanese. Lawsky’s letter to the team announcing the news says that Governor Cuomo’s office is conducting a search for a permanent replacement.

Lawsky led the charge by the NY watchdog that led to $3+ billion in fines against banks during his four years. The DFS is the state regulator in charge of overseeing many global banks because they are licensed and operating in New York City.

It is unclear what this will do to the potential for expansion of New York’s whistleblower rewards. At the beginning of this year, Lawsky called for New York to adopt a financial whistleblower program similar to the SEC program. A bill to reward DFS whistleblowers has previously been considered by New York legislators.

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Massive Currency Manipulation Settlement Expected Wednesday

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The Justice Department is expected to announce a multi-billion dollar settlement this week (reportedly Wednesday) with five financial institutions over manipulation of the currency market. Barclays, which was not a part of the November global forex settlement, is expected to also resolve investigations by the CFTC, NY DFS and UK FCA at the same time for a sum that may be as high as $3.1 billion.

The Department of Justice has been investigating the banks for antitrust violations related to their rigging of the forex markets. Traders at the banks reportedly used electronic chat rooms to manipulate the markets and foreign exchange benchmark rates.

JPMorgan, Royal Bank of Scotland, Citigroup and UBS are expected to settle in addition to Barclays. UBS is still talking with the DOJ about possible criminal charges, but subsidiaries of the other four banks are expected to plead guilty to criminal charges. The banks are expected to pay as much as $1 billion each as part of the DOJ settlement. The media is reporting that the DOJ is pushing for a Wednesday announcement but wrapping up all of the loose ends on the agreements might take another day or two.

JPM, RBS, Citi and UBS were all part of the November settlement which resolved investigations by the CFTC, OCC and UK FCA, but not the DOJ. That deal provided them with a discount for early settlement of the charges. According to the media, Barclays backed out of the deal in November because it could not reach agreement with the New York Department of Financial Services as well. This agreement will reportedly carve out the NYDFS investigation into its use of electronic trading programs to manipulate the forex market to allow that aspect to go forward.

Citigroup also announced today that the DOJ had declined to prosecute it for LIBOR rigging. Including the Deutsche Bank fines last month, a dozen financial institutions have paid a total of about $9 billion to resolve investigations into Libor manipulation.

The deadline for submitting a whistleblower claim on most of the first set of Notices of Covered Actions has passed, with only Citibank still open for a few more days. If there was a forex whistleblower behind any of these actions, the award would likely set a record for the Dodd-Frank whistleblower programs. The highest reward handed out so far was by the SEC – $30 million to an international whistleblower last year.

For questions about this and other aspects of the CFTC whistleblower program, as well as assistance reporting violations of the Commodity Exchange Act to the U.S Government, contact one of our whistleblower attorneys via our contact form or by calling 1-800-590-4116.

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Deutsche Bank Settles LIBOR Manipulation for $2.5 Billion.

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Deutsche Bank has agreed to pay more than $2.5 billion to the Commodity Futures Trading Commission, Department of Justice, New York Department of Financial Services and the U.K. Financial Conduct Authority to resolve their investigations into benchmark interest rate manipulation. The company is the sixth financial institution to resolve the allegations against it and the largest penalty so far in the London Interbank Offered Rate (LIBOR) investigations.

The CFTC issued a fine of $800 million, which sets a record for largest single penalty issued by the Commission. The derivatives regulator released a list of examples of misconduct by the bank that it found in written communications from 2005 to 2010. The examples detailed various traders and managers discussing internally and with submitters the need to raise or lower the interest rate submission. There are examples of attempts to manipulate the U.S. Dollar LIBOR, the Yen LIBOR, and the Euribor. There are also examples of coordination with other banks to fix the Euribor and the Yen LIBOR. The false reports and manipulation of the benchmark rates went so far as to attempt to manipulate the Sterling and Swiss Franc. The CFTC has now imposed over $4 billion in penalties against banks in its LIBOR and Forex investigations.

Deutsche Bank and its subsidiary will pay $775 million to the Justice Department in criminal fines for manipulating U.S. Dollar LIBOR and a price-fixing conspiracy to rig the Yen LIBOR. The subsidiary, DB Group Services (UK) Limited, agreed to plead guilty to wire fraud in the manipulation of LIBOR. The DOJ press release indicated that derivatives traders at the investment bank attempted to move benchmark rates in order to make more money on their trading positions and DB admitted that

The New York Department of Financial Services will be paid $600 million. Reaching agreement with NYDFS has reportedly been an issue for some banks as they seek to reach global settlements with the multiple regulators in the United States and abroad that are investigating them.

The UK FCA fined the bank 227 million GBP (roughly the equivalent of $340 million). The acting director of enforcement and market oversight at the British regulator said that the fine was compounded because the company repeatedly mislead them. They took “far too long” to produce the requested documents and did not quickly fix the systems and controls that had failed. The UK FCA specifically pointed to an inadequate system of auditing and investigating misconduct. It apparently took them over to years to identify and provide the audio recordings requested.

The regulator pointed to 29 individuals at the company, primarily based in London but also in Frankfurt, Tokyo and New York, that engaged in misconduct. It also added an accusation that I didn’t see made by any of the other regulators in their press release: the bank offered or bid in the market to attempt to influence the submissions of other banks.

Last year when the banks settled the first round of Forex investigations, we discussed the possibility that a whistleblower might receive a substantial sum of money out of the settlement. If a whistleblower were to provide information to the CFTC whistleblower program that resulted in a fine of the size paid by Deutsche Bank, an award well over $100 million would not be out of the question. If the maximum reward were issued, it could be as high as $750 million.

The bank is still being investigated for manipulation of the foreign exchange markets and the Wall Street Journal reported that there is speculation there will be an even higher fine in that case. DB is also under investigation for possible violations the U.S. economic sanctions against Iran.

For answers to questions about this and other aspects of the CFTC whistleblower program, as well as assistance reporting violations of the Commodity Exchange Act to the U.S. Government, contact one of our whistleblower attorneys via our contact form or by calling 1-800-590-4116.

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NY Whistleblower Lawsuit Sparks $714 Million Forex Settlement by BNY Mellon

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A lawsuit filed under New York’s False Claims Act by a whistleblower in 2009 started the government’s investigation into BNY Mellon’s foreign exchange (Forex) practices. Today, the bank agreed to pay $714 million to settle with multiple government agencies and its customers.

According to a press release by New York Attorney General Eric Schneiderman’s office and the lawsuit, BNY Mellon agreed to give its customers the best price on foreign exchange transactions of the day. Instead, it gave the investors using its financial institution the worst price (or nearly the worst) and kept the best price for itself – pocketing the difference.

The lawsuit filed by New York State in 2011 sought to recover on behalf of state pension funds the $2 billion BNY Mellon earned while using the scheme for the past decade.  The U.S. Government’s lawsuit, filed separately the same year, sought hundreds of millions in penalties.

In the settlement, the U.S. Department of Justice and the New York Attorney General will both receive $167.5 million. The class action will split $335 million among the bank’s customers.  The Securities & Exchange Commission (SEC) and the Department of Labor also participated in the settlement.

According to a Wall Street Journal article in 2011, the whistleblowers also submitted information to the SEC whistleblower program.  The article also mentions similar information provided about currency practices at State Street.

This investigations were separate from the government’s currency manipulation investigation which we discussed earlier in the week.

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Morgan Stanley, MetLife Settle Government Investigations into Mortgage Fraud

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Morgan Stanley has announced an agreement in principle to settle the Justice Department investigation into its sales of mortgage-backed securities prior to the financial crisis. The $2.6 billion settlement comes only a few days after the Wall Street Journal published an article indicating that the talks were in an early stage. The deal has not been finalized.

The investigation related to Morgan Stanley’s involvement with subprime lender New Century Financial. New Century was the second largest subprime mortgage lender.

Yesterday, a unit of MetLife also settled allegations brought under the False Claims Act that it allowed the FHA to underwrite hundreds of home loans failing to meet federal standards. MetLife Home Loans will pay $123.5 million. The company admitted that it became aware of home loans failing to meet federal standards through its internal quality control practices and yet it still stuck the government with the bill when the loans defaulted.

In other news from the mortgage fraud front:

Goldman Sachs has also been notified by the federal government of potential charges coming in the future because of its mortgage-backed securities practices. The New York Times called Goldman Sachs the last major bank to have unresolved allegations with the DOJ over the subprime crisis. In a securities filing, Goldman expanded the top end of its potential losses to $3 billion. It called this amount “reasonably possible.”

Settlement discussions have fallen apart between Wells Fargo and the DOJ over a potential resolution to the FHA lawsuit over improper certification of certain mortgage loans. According to the Wall Street Journal, there was almost an agreement last summer but the DOJ has asked for additional information. The previous discussions put the amount at issue under $500 million.

Additionally, New York’s Attorney General Eric Schneiderman is building support for a state law that will reward whistleblowers providing information about securities fraud. The law hasn’t been formally introduced but a spokesman for the attorney general told Bloomberg that sponsors of the bill have been lined up. We’ll detail this in a separate blog post shortly.

In a prior year, New York had a bill introduced to reward whistleblowers in the financial industry. The legislation proposed by State Senators James Steward and Joseph Griffo then would have rewarded individuals for information provided to the Department of Financial Services. More details can be found in our previous blog post about the legislation.

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Top False Claims Act Settlements in the First Quarter of FY 2015

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We’re in the first full week of 2015 but the federal government flipped its calendar three months ago when fiscal year 2014 concluded at the end of September. There have already been several significant cases resolved under the Federal False Claims Act in FY 2015. These include:

DaVita – October 2014
The largest settlement in the healthcare industry covering solely allegations of kickbacks was agreed to in October by one of the largest companies providing dialysis treatment and support services for chronic kidney failure. They will pay $350 million under the False Claims Act and forfeit $39 million related to two joint ventures in Denver. The whistleblower had served as a senior financial analyst in the company’s M&A department.

Supreme Foodservice – December 2014
This supplier of food, water and fuel to troops in Afghanistan overcharged the Department of Defense from 2005 until 2009 according to the government’s allegations. It agreed to pay $101 million under the False Claims Act and $288.36 million in restitution and criminal fines.

Stryker – December 2014
A former Stryker sales representative reported the company for distributing knee replacement surgery cutting guides after they were rejected by the FDA. The company agreed to pay $40 million under the False Claims Act and $40 million in criminal penalties and forfeiture.

Iron Mountain – December 2014
The information management company paid $44.5 million to settle allegations it overcharged the federal government for record storage services.

Extendicare – October 2014
The company paid $37 million to resolve allegations it billed Medicare and Medicaid for worthless nursing services and unnecessary rehabilitation therapy at 33 skilled nursing homes in eight states between 2007 and 2013.

Dignity Health – October 2014
The company, one of the five largest hospital systems in the nation, paid $37 million to settle allegations 13 of its hospitals billed government health programs for admitted patients having elective cardiovascular procedures who could have been treated on an outpatient basis and 4 hospitals similarly billed elective kyphoplasty procedures to treat spinal compression fractures.

Lockheed Martin Integrated Systems – December 2014
LMIS billed the government for work allegedly performed by employees who lacked the job qualifications specified by two U.S. Army Communication and Electronics Command issued contracts. It will pay $27.5 million to resolve the allegations.

CareAll – November 2014
This home health care agency, one of Tennessee’s largest, billed Medicare and Medicaid for services that were not medically necessary and rendered to patients who were not homebound. The $25 million settlement with the United States and Tennessee covered allegations of misconduct between 2006 and 2013. The company previously paid over $9 million in 2012 to resolve allegations of false cost reports submitted to Medicare.

Boeing – October 2014
The defense contractor paid $23 million to resolve allegations it improperly billed labor costs on maintenance contracts for the Air Force’s C-17 Globemaster. The government alleged that the company billed inappropriately, including for mechanics when they were attending meetings not directly related to the contracts.

State Lawsuits

In addition to the Federal False Claims Act, approximately thirty states have their own version of the law to prevent fraud against their state treasury. There have been a few noteworthy settlements in the past three months under state False Claims Acts as well. These include:

Office Depot – November 2014
The office supply store agreed to pay $68.5 million plus legal fees to resolve allegations under the California False Claims Act that the company failed to deliver its best price on goods sold to the state. Office Depot previously settled a similar lawsuit with New York State in May 2014 for $475,000 and Florida in 2010 for $4.5 million.

Organon – October 2014
The Netherlands pharmaceutical company now owned by Merck paid $31 million to various states, including approximately $2.5 million to New York State, to settle allegations of misrepresented drug prices, underpaid rebates, off label marketing and kickbacks to nursing home pharmacies.

Whistleblower Rewards

In the case listed above, whistleblowers earned more than $110 million. That figure doesn’t include the $170 million announced by whistleblowers from the Bank of America settlement from August which were made public in December.

We were able to quickly isolate these cases because of the work done by Taxpayers Against Fraud. If you would like to see the rest of the settlements from October through December, visit their website here.

New York Considering Awards for Bank and Insurance Industry Whistleblowers

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Whistleblowers at banks and insurance companies may have another option to receive compensation for reporting misconduct if legislation written by two New York State Senators is ultimately adopted. Last year, State Senators James Steward (R-Milford) and Joseph Griffo (R-Rome) introduced a bill, S4362, into the New York State Senate to compensate and protect individuals providing information to the New York State Department of Financial Services (DFS). It offers eligible whistleblowers between 10 and 30 percent of monetary sanctions imposed in a covered judicial, administrative or related action.

Details of the Legislation

The bill models the DFS program after the Securities and Exchange Commission program created by the Dodd-Frank Act. Unlike the procedure under New York’s False Claims Act, an individual would not need to file a qui tam lawsuit to become eligible for a reward. Instead, there would a tip submission procedure for informing DFS. Following a successful enforcement action based on the information, an award would be issued to an eligible individual upon submission of a valid claim form.

The legislation also takes steps to protect the identity of whistleblowers. It permits anonymous filing of claims for awards and does not allow the release of any information which could reasonably be expected to reveal the identity of a whistleblower “unless in the judgment of the superintendent the ends of justice and the public advantage will be served by release of such information.”

It prohibits retaliation against employees, contractors and agents. If discrimination happens, remedies for the individual include two times back pay and special damages such as litigation costs and attorneys’ fees. Perhaps more importantly, it explicitly includes hiring decisions by prospective employers in the future. If an employer refuses to hire an individual who has acted as a whistleblower under the law, they may be required to hire the employee to the position or an equivalent one.

The bill also limits attempts by companies to hamper the effectiveness and purpose of the program through employment agreements. It specifically bars waiver of whistleblower rights and remedies in pre-dispute arbitration agreements or in severance packages. It also eliminates efforts to clawback wages or consideration from the severance package. This has been an issue that has arisen from the Dodd-Frank Act because some have argued that only prospective waivers are limited, rather than existing claims.

Rewards for Violations at Financial Institutions

The bill is timely as DFS has been involved in several major enforcement actions, including BNP Paribas and Credit Suisse. The Department of Financial Services was created in 2011 when the functions and authority of the New York State Banking Department and the New York State Insurance Department were transferred to it. Given its role overseeing the conduct of banks operating in New York, the bill could lead to payouts for information in amounts rivaling the largest made by the United States government.

Significantly, it would provide individuals with information about financial institutions violating economic sanctions and anti-money laundering laws an opportunity to be compensated when New York sanctions them. The DFS has played a leading role in the investigation of BNP Paribas, the French bank that is accused of violating sanctions against Iran and may be fined up to $10 billion by U.S. authorities.

The legislation would provide another avenue for whistleblowers to report offshore tax evasion facilitated by a financial institution operating in New York. Currently, individuals who desire compensation report these cases to the Internal Revenue Service, which already has its own program for compensating informants. In the recent settlement by Credit Suisse, $715 million out of the $2.6 billion to be paid was earmarked for DFS.

Incentives for Reporting Violations of Insurance Laws

Employees in the insurance industry with operations in New York should take note, because DFS regulates conduct by insurance companies as well. The bill specifically includes enforcement actions that result from a company acting in violation of an insurance law. What types of insurance cases might the New York regulator be interested in if the law is passed?

DFS has pursued multiple enforcement actions recently where an insurance company was charging rates out of line with actual loss ratios. In 2013, New York settled with multiple force-placed insurance companies, including Assurant, QBE, Balboa and American Modern, for violating the state’s insurance law. Among the accusations was that actual loss ratios were far below the expected loss ratios filed with New York.

Force-placed insurance is not the only area where loss ratios come into play. DFS also fined Markel Insurance Co. nearly $1 million for overcharging students for health insurance. The student health plans failed to pay out at least 65 percent of the insurance premiums on medical care.

DFS also would be interested in information about an insurance company operating in the state without the appropriate license. It received a large settlement in 2014 from an enforcement action against MetLife for two subsidiaries that inappropriately sold insurance in the state. American Life Insurance Co. (ALICO) and Delaware American Life Insurance (DelAm) violated the law while they were subsidiaries of AIG, prior to their acquisition by MetLife. MetLife agreed to pay $60 million to settle the charges.

Chances of Passage

There hasn’t been much coverage of this bill since it was introduced. Still, the leadership role taken by the Department of Financial Services in prominent enforcement actions could create momentum for the bill to aid in the discovery of other companies breaking the law. Enforcement.

New York Recovers $851 Million Lost to Medicaid Fraud and Misspending.

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New York, home to one of the nation’s largest Medicaid programs, recovered $851 million in taxpayer funds in 2013. The amount nearly doubled New York’s previous record recovery, $468 million in 2012. The money recovered accounted for dollars lost by the program due to fraud, waste or other misspending. The state did not specifically identify the amount of money recovered through qui tam lawsuits under the New York State False Claims Act or the Federal False Claims Act.

It appears nearly a quarter of the money recovered was from the federal government. According to the press release from the New York Governor’s office, the Office of the Medicaid Inspector General (“OMIG”) identified $496 million in inappropriate Medicare billing. OMIG identified situations where the federal Medicare program should have paid for home health services to consumers with both Medicare and Medicaid. In dual eligibility situations, home health care providers are supposed to bill Medicare first and then bill the state Medicaid program for the remainder. Medicaid improperly reimbursed the health care provider instead. New York recovered $211 million of the mispayments in 2013.

New York also identified two notable incidents of health care fraud in 2013. In the first, a group of individuals living in a gated beachfront community enrolled fraudulently in the Medicaid program. They fabricated information on their applications in order to become eligible. Six individuals were prosecuted by the Brooklyn District Attorney for their role in the fraud. In the second, auditors discovered inadequate and missing documentation at the Abbott House in Irvington, NY. Abbott House received reimbursement for some services that were performed without a rehabilitation plan and billed for more days of services than it had documentation. OMIG recovered more than $254,000.

The announcement of record recoveries in 2012 and 2013 follows controversy over the appointment of Medicaid Inspector General James C. Cox to the position. James G. Sheehan, the state’s first Medicaid inspector and Cox’s predecessor, was dismissed by the Cuomo administration after complaints of aggressive audits and unfair tactics. Sheehan’s office was responsible for recouping $1.5 billion in Medicaid fraud and misspending in four years. Governor Cuomo directed Cox to pursue a more cooperative approach to audits, according to the New York Times.

Waste and abuse in New York’s Medicaid program has been well documented. The Committee on Oversight and Government Reform identified billions of federal tax dollars misspent on the program in a report issued in 2013. The report identified excessive salaries to Medicaid-funded organization executives, abuses of eligibility rules and overpayments to New York development centers. Efforts to reform the program to curb abuse come at the same time as the United States is cracking down on federal tax dollars lost due to health care fraud. The Department of Justice identified $2.6 billion recovered from health care fraud in its 2013 Fiscal Year. The government also recovered $443 million on behalf of state Medicaid programs.

McEldrew Young represents whistleblowers reporting fraud to the government through the False Claims Act. For a free confidential consultation, please call Eric L. Young, Esquire at 1-800-590-4116 or complete our online contact form.

NEW YORK FALSE CLAIMS ACT TAKES THE LEAD IN THE FIGHT AGAINST FRAUD

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New York is once again pushing the envelope with proposed amendments to the New York False Claims Act, N.Y. Fin. Law §§ 187 – 194 (“NYFCA”).  Twenty-nine states, the District of Columbia, and a number of large U.S. cities have enacted their own False Claims Acts that substantially mirror the federal False Claims Act, 31 U.S.C. § 3729, et seq. (“FCA”).  However, no state or local law, nor the FCA, is as comprehensive as the NYFCA.

In 2010, New York amended the NYFCA, bringing claims of tax fraud within the purview of the law.  Upon doing so, New York became the first, and to date the only, jurisdiction to include such a provision within its False Claims Act.  By contrast, the FCA specifically discounts tax fraud, leaving such claims to the, arguably less effective, IRS Whistleblower program.  New York Attorney General Eric Schneiderman, championed the amendment during his time as a New York State Senator.

Likely due in large part to its success prosecuting cases under the expanded NYFCA, a number of New York State Senators are looking to again widen the scope of the law to further hone its efficacy as a fraud fighting tool.  Senate Bill S4362, the proposed expansion to the NYFCA, would cover whistleblowers who provide information about violations of New York’s banking, insurance, and financial services laws to the New York State Department of Financial Services (“DFS”).  In the event of a successful DFS action, the whistleblower will be entitled to receive up to thirty-percent of the total recovery as a reward for their assistance.  Additionally, the proposed amendments offer the same protections from retaliatory employment actions, currently enjoyed by NYFCA whistleblowers.  Looking to again champion the strengthening of the NYFCA, on October 23, 2013, Mr. Schneiderman’s office submitted proposed regulations related to the expansion.

Young Law Group, P.C.

Young Law Group is a nationwide leader in whistleblower representation and has successfully represented numerous clients in some of the nation’s largest qui tam cases for over a decade.  For a free confidential consultation, please call Eric L. Young, Esquire at (800) 590-4116 or complete the online form here.

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