The concept of a “prima facie” case does not come up particularly often in false claims, but you or your False Claims Act attorney do have to be able to demonstrate the elements of the claim. That means being able to show that the defendants knew or had reason to know or act in restless disregard of the truth. For example that the claims they were making on the government were false.
That sounds pretty simple, but it can get very complicated to determine:
- Why was it false?
- Did they know it was false?
- Should they have known it was false?
- Why should they have known it was false?
- What specifically was false about it?
- Did they certify something, for example?
- Did they specifically state X, Y or Z will be true whether they knew it was not?
These are the elements of a case that a false claims act attorney looks for.
Standard of Proof in False Claims
The standard of proof in a trial is preponderance of the evidence, which is kind of interesting because right up until trial it is almost an uphill battle for the whistleblower. It certainly is in a case the government declines to support. It is uphill to overcome the burden of pleading for a particularity, to overcome the pleading requirements and the various motions requirements and the motions to dismiss and every other grounds that there may be in a case.
However, at trial, a preponderance of the evidence is a lighter burden than, for example, a criminal standard of beyond a reasonable doubt. Preponderance of the evidence means more likely than not and so if it is more likely than not that the defendant is guilty of false claims they would lose at least in theory in a jury trial. That is the burden of proof under the false claims act.
Putting Together a Case to Meet the Requirements
The overall issue with filing a false claims act case, and 9B is certainly part of it, is that attorneys and their clients have to spend a lot of time potentially mining the brain of the whistleblower to be sure that everything that they can think of that is relevant to the case somehow winds up in the complaint. That can be a laborious process. The whistleblower may have obtained the information about the case over several years of working for a defendant and so some facts that seem really important when the whistleblower first discusses the matter may be less important upon reflection and there may be additional facts involved.
At the initial stages, it is a lot of trying to come out with as much information as is possible. After that, it is just attempting to conform with the requirements for being able to specifically state the scheme, the fraud, the time, the place and the specific violations that have occurred to overcome the 9B burdens and show how the false claims act has been violated with some degree of specificity. That is the burden that faced as a plaintiff’s lawyer in this kind of litigation.
False Claims Act Cases vs. Poor Management
There are many times when contractors work for the government and attempt to do a job in good faith, and it does not work out well. That can happen to a government contractor just as it happens in private industry all the time, and that is a situation in which the parties should probably work out something to fix the problem, but that is not a False Claims Act case. A False Claims Act case involves being fraudulent, lying about what you are providing, for example, lying to the government about the material being used in order to make more money.
Defendants often try to taint False Claims Act plaintiffs as people who are upset about something that is not that big of a deal, that is just a normal contract violation that can maybe be fixed. The truth is, for attorneys who bring False Claims Act cases, they only want to bring the strongest cases. You are not likely to succeed unless you have a very, very strong case.