The Vetting Procedure in False Claims Act Cases

The False Claims Act procedure allows a whistleblower with a good faith belief in their allegations to come forward and bring the case and for The Department of Justice to give a hard look at the facts and hopefully investigate. If they can substantiate the whistleblower’s allegations, the DOJ usually will pursue them.

With that said, if the government declines to follow through on a False Claims Act case, it can have a chilling effect for False Claims Act attorneys to think about bringing further cases.

Expansive Nature of  Cases

Although False Claims Act cases are a little weird in that there is almost no such thing as a small one, people can be certain that the defense counsel or defense bar are going to fight it pretty hard and are going to summon serious resources to do so.

As a result, few plaintiff’s False Claims Act lawyers are in the business of filing a case and pursuing a case that they do not think really is meritorious. If attorneys can see a major problem with the case, at the outset, certainly the government is going to see that problem and the defense bar is going to see that problem.

Attorneys may not know every fact with respect to a case because a whistleblower may not know some things that may pertain to the case upon investigation. It may have an impact on it. But that is what the analysis that most of them bring when they try to figure out which cases to file under this law.

Difficult False Claims Cases for Rule 9B

It can be difficult proceeding under a large defense contracting case, because being able to obtain invoices can be difficult. Saying which is the false claim that was made can be difficult.

There are a lot of types of cases where obtaining the actual claim may be more difficult than one would think. If it is an ongoing contract, a whistleblower may know for certain that everything about that contract is not up to specification. Yet some court may ask where the invoice is. Depending on what the courts require to overcome that burden, some cases are more difficult than others. It depends a great deal upon the information an attorney’s client has.

Generally, in Medicare and Medicaid cases, the government at least can subpoena invoices, to help overcome the burden in that regard.

What Makes a Good Case

A good False Claims Act case is one in which the plaintiff can explain the actual fraud relatively quickly in about a paragraph. What makes it difficult is always that the industry involved is complicated and false claims procedure is complicated. If the harm and the lie by the potential defendant are not easily understandable, it is not as good a case.

In, for example, defense industry cases or health care cases, there is a lot to become familiar with and make the government familiar with in order for them to want to proceed with the case.