Defendants don’t like being sued under the False Claims Act. They are expensive to defend. So they may attempt to bring whatever potential counterclaims they can think up in order to scare the Relator (aka whistleblower) into dropping the lawsuit or settling, particularly in declined cases.
Here are a few of the counterclaims that we have seen over the past few years. Please ask us about your specific concerns.
Breach of Contract: Confidentiality
The government is increasingly taking action against companies that have clauses in contracts prohibiting the reporting of fraud, waste or abuse. So this is less of a problem then it used to be. However, it is still worth discussing with us to ensure that your agreement has been modified or the law has otherwise invalidated this contract term. If it has not, you still may be able to avoid this counterclaim which promotes whistleblowing as a public policy.
This used to a problem in cases. The Defend Trade Secrets Act of 2016 now provides immunity from civil or criminal liability under any Federal or State trade secret law for a disclosure that is made in a complaint filed under seal in a lawsuit. It also protects disclosures in confidence to government officials that are made in confidence and solely for the purpose of reporting a suspected violation of law.
Libel and Defamation
This is generally seen when a plaintiff makes false and damaging statements to the media or other third parties.
If you have concerns about a potential counterclaim, please ask us about it during our initial investigation. We want to know the details of your case so that we can best advise you what to do