The False Claims Act is based on a very simple idea to help fight against fraud in the United States. This idea is based on the simple premise of providing financial incentives to encourage people with information about fraud committed against the government to come forward and report that fraud.
Though this is a simple concept, it is successfully applied to the most complex of cases. It is also the most effective way to fight fraud against the government yet devised by Congress, so it benefits not only the whistleblower, the person with the information, but also the government and everyone in the United States. While no DC False Claims Act lawyer can guarantee success in any matter, we know when we are providing our clients the strongest course of action—both for them personally and for the country—to help fight fraud when we pursue a case of fraud against the government through the False Claims Act.
The False Claims Act is based on a very simple idea to help fight against fraud in the United States. This idea is based on the premise of providing financial incentives to encourage people with information about fraud committed against the government to report that fraud.
Though this is a simple concept, it is successfully applied to the most complex of cases. It is also the most effective way to fight fraud against the government yet devised by Congress, so it benefits not only the whistleblower, the person with the information, but also the government and everyone in the United States. The Law creates liability when anyone billing the government makes misrepresentations to the government and commits some level of false billing, false claim, or fraud against the government. While no DC False Claims Act lawyer can guarantee success in any matter, we know when we are providing our clients the strongest course of action—both for them personally and for the country—to help fight fraud when we pursue a case of fraud against the government through the False Claims Act. Read below to learn more about how a DC False Claims Act lawyer could help you.
More Information on the False Claims Act
All the investigators and auditors the government can hire are ultimately dependent on the few courageous individuals who see what is going on and are willing to come forward and report wrongdoing. Without real whistleblowers who know what is happening inside an industry, the government cannot possibly know when something illegal or fraudulent is occurring.
Part of the success of the False Claims Act is that it provides financial incentives to those individuals who report fraud. It also provides legal recourse for those who suffer retaliation as a result of any complaints or reports they made about fraudulent conduct. The FCA has some special procedural twists, which can help whistleblowers, while at the same time being very frustrating for Washington DC False Claims Act lawyers and their clients. Still, it is hard to imagine a better way to pursue large fraud cases in court.
Pursuing a matter of fraud against a major government contractor (even minor government contractors are usually pretty big companies) is arduous, to say the least. It can be daunting to take on such a defendant. Fortunately, the procedural and financial structure of the law helps whistleblowers who could not go it alone in this fight. First of all, the case is filed under seal to give the government the opportunity to investigate claims. Hopefully, the U.S. Department of Justice can corroborate the whistleblower’s claims. When that occurs, it is no longer just the individual whistleblower facing off against some huge company.
This process, while ultimately helpful to the plaintiff and the government, can also be extraordinarily difficult to live through for those who want to fight fraud. Government investigations can take a great deal of time. During that time, whistleblowers have to do something, which does not come naturally at all. They must keep quiet about the case. For a whistleblower who wants to report fraud, it can be hard to live with the fact that filing the case is the action to take, and that decision means working with counsel and with the government, at least until the government decides what it will do with its investigation.
As a False Claims Act attorney in Washington DC can explain, the plaintiff must keep quiet so as not to violate the Seal of the Court. For a whistleblower, who is often driven by the urge that wrongdoing should be made open to the public, the act of keeping quiet can be particularly challenging, but there is also a benefit to this requirement. At least while the investigation is being conducted, the whistleblower’s name is generally protected.
FCA Subsections and Key Terms
It is extremely rare to file a False Claims Act case that does not contain a violation of one of several of the FCA subsections. Those subsections include, but are not limited to:
- Fraudulent Claim for Payment or Approval: U.S.C. Section 3729(a)(1)(A)
- False Statement or Record: U.S.C. Section 3729(a)(1)(B)
- False Claims Conspiracy: U.S.C. Section 3729(a)(1)(C)
- Reverse False Claims: U.S.C. Section 3729(a)(1)(G)
There are also some key terms and concepts that should be considered in regards to the False Claims Act, particularly “knowing or knowingly.”
FCA and Government Rewards
The potential rewards and the financial structure of the Act are also very helpful to whistleblowers. It allows an individual to recover 15 percent to 30 percent of whatever the government recovers. As a result, not only can a whistleblower potentially make money on a case, but it usually possible for a whistleblower to work with a Washington DC False Claims Act attorney on a contingent fee basis to avoid costly legal payments and coverage until after the reward is determined. Of course, the ability to retain counsel is crucial to a potential plaintiff. If, as is often the case, the plaintiff has already lost employment as a result of complaining to management about the fraud, it can be very helpful to be able to point to a potential collection and work with counsel on contingency.
Finally, the plaintiff can also sue for employment retaliation as part of a False Claims Act case. So the successful plaintiff may be eligible for double back pay and other damages related to their case. For all these reasons and many others, the False Claims Act is the best way to fight fraud committed against the government. It has proven to be effective both for the government and for whistleblowers and it is a genuine pleasure to be able to advise clients of these facts when their circumstances merit a case.
The Growing Popularity of the FCA
The idea of empowering whistleblowers is spreading. There are now some 29 States, plus the District of Columbia, at least two cities, and even a few counties with their own False Claims Acts, each one modeled at least partially on the federal law. As previously noted, there are new whistleblower rewards laws created through the Dodd-Frank Act.
Hopefully, as more whistleblowers are successful using these laws to fight fraud on behalf of all of us, these cases will also bring greater respect for the brave individuals who are willing to take on that struggle.
Whistleblowers as Experts
As a False Claims Act lawyer in the District of Columbia can explain, the paradox in FCA cases is that there are huge complications in getting to the point of understanding the simple fraud. There are always complications involved in understanding how the underlying business is supposed to work, and that can make even a straightforward case of fraud difficult to explain.
That is why whistleblowers also tend to be experts in their fields. They tend not only to be the people with information about their company, but also people who know how that company is supposed to run. They tend to be the people who care whether or not the company follows safety regulations when everyone else focused solely on cashing a paycheck.
The Process of an FCA Claim
While the procedural requirements of the law may not have been intended to empower whistleblowers, they can be employed to the individual’s advantage. A False Claims case must be filed under seal to give the government an opportunity to investigate claims.
The investigation is generally conducted through the U.S. Department of Justice, which will also determine if the government will “join” or “intervene” in a case. Such a decision by the government means that they will take over the prosecution of the case, including the expense of litigation.
It usually means success, either through settlement or judgment and therefore a collection for the individual plaintiff who decided to file the case. Many times, the government will attempt to work out a settlement with the defendant even before making a formal decision to intervene or take over a case.
Things to Know About FCA Government Investigations
Whistleblowers must be careful about the types of information they provide to counsel and discuss with counsel carefully about the types of information that make sense to provide. The whistleblower should keep in mind that although bringing the allegations against their employer is difficult, it is of extreme importance. That does not mean the government can move any faster on the allegations and it could take quite some time. This could prove to be frustrating for the whistleblower.
While the requirement to file the case under seal may not have been intended to empower whistleblowers, it does often work to protect them. At least initially, while the government investigates the allegations in a complaint, whistleblowers can avoid being exposed to retaliation. The case can go on for some time without anybody knowing who filed it. The whistleblower may have an opportunity to find new employment and move on with their career even as their allegations are being investigated.
Rules Regarding Claims Under Seal
When cases are filed under seal, the statute says they will be under seal for 60 days. The statute also says the seal may be extended for good cause. In almost all circumstances, the government files a motion with the court to extend the seal. Whistleblowers could either take no position, oppose it, or assent to it.
Generally, a whistleblower will assent to most seal extension requests by the government. However, they are required not to confirm the existence of the case while it is under seal and being investigated. This could prove to be a difficult burden for whistleblowers, and one that is not generally understood. They are allowed to talk only to their counsel about the case and the progress of the case. The whistleblower must refrain from having conversations with anybody that would confirm the existence of an FCA action filed under seal. The courts are strict in enforcing the seal provisions and could fine and remove whistleblowers from obtaining any collection when a seal is violated.
Length of Time it Takes to Process a Claim
The length of time the government has to conduct their investigation depends on the court and the government’s ability to convince the court that there is good cause to continue investigating. Many cases stay under seal for investigation for several years. Some courts become frustrated with a case being kept under seal for an extended period of time and they demand action be taken. To continue an investigation, the government must convince the judge that they have reasons to continue to investigate, they are making progress in their investigation, and they can provide the court with good cause to extend the seal period. A judge might decide that they are no longer willing to wait and demand that the case be taken out of seal.
Some judges are more willing to allow the government additional time to conduct an investigation. It varies from court to court and case to case. However, it is hard to believe an investigation into a serious manner of fraud conducted by a major defendant can be done in less than a year. These things take time even when the government provides the defendants with a civil investigative demand. It can take the defendants a long time to conduct the investigation, accumulating the evidence, and provide it to the government.
Remaining Employed After Reporting Fraud
A whistleblower may remain employed with the company on whom they blew the whistle. Although this could be a stressful situation for the whistleblower, they are legally allowed to continue to work for their employer. While the case is under seal, they cannot confirm the existence of the case and most likely, the defendant does not know they have filed a case. At some point, when the government starts asking questions of the company, even though they do not confirm the existence of the case, this could raise suspicions and cause issues at the workplace for the employed whistleblower.
Once the case is out of the seal and the defendant knows they are under investigation, firing the whistleblower when a is case filed, or there is an action against them for fraud, is a violation of the anti-retaliation provisions of the False Claims Act. The whistleblower has the opportunity to sue for that type of action. However, of course, this may not be a situation a whistleblower wants to endure and proving a case of retaliation is another legal issue as well. Many use the seal period while the case is being investigated to move on to another employer.
Invalidating FCA Claims & First-to-File Bar
When a case shares facts with another case, the new case could be invalidated. It depends on which claims of each case are deemed invalid. There may be claims that are passable to present as part of the second case that is distinct from the first case, even if they share some overall facts. It can be difficult to obtain all the information or know every allegation that the defendant may be violating. However, it does leave room open for additional cases.
The point of the First-to-File Bar that seems to get lost is that it is intended to provide more incentive to whistleblowers to come forward with the allegations of fraudulent activity and report them to the government sooner. Sometimes, the courts are harsh in not-rewarding second filed cases.
The whole point of the First-to-File bar is not to create disputes between relators, it is to encourage all relators to come forward sooner and bring more information to the government so the government can prosecute those allegations.
What is the Public Disclosure Bar?
The public disclosure bar was amended as part of the Affordable Care Act, which is currently under judicial review. Under current law, the public disclosure bar says that if a person files a case and they based it on allegations in public media that appeared prior to filing a case, they cannot be a relator in the case, unless they are an original source of the allegations.
One could argue that if the whistleblower brings the information to court before the government does anything about it, the whistleblower should be rewarded since they are helping the government collect. Unfortunately, Congress does not see it that way and limits the ability of whistleblowers to successfully bring False Claims Act cases that involve publicly disclosed allegations to the whistleblowers who could show they are an original source of the material they provide to the government. There is a provision of the law that allows the government to in effect waive this requirement as well, but it has been used rarely since enacted as part of the Affordable Care Act. For more information, consult with a False Claims Act lawyer in DC.
Call a DC False Claims Act Attorney for Assistance
We all have a duty to support the people who are willing to stand up against the powerful forces that all too often put the priority on making profits above safety and honesty. That is why working for the people who seek to employ the power of the False Claims Act appropriately is an honor. It is important to work with a DC False Claims Act lawyer who understands that and is willing to fight tirelessly to protect their potential client’s rights.