Usually, an employment lawyer will contact a False Claims Act attorney when their client has been fired for complaining about something. The employment lawyer may have many different types of claims to consider and they want to know if there’s an underlying False Claims Act case. It is the attorney’s job to work with the employment lawyer to see if it’s possible to pursue a False Claims Act case in addition to or separate from or as part of the same action.
If the client suffered retaliation for complaining about fraud against the government, it may be possible to fold the whole thing into one action under the False Claims Act and the False Claims Act Anti-Retaliation Provisions, for example. Employment lawyers are usually casting about trying to determine if there’s anything in addition to the usual types of damages that they might otherwise be able to obtain for their clients. The aiding lawyer usually tries to defer to them regarding what the employment law-related damages are that might affect their clients, and then they try to advise the client as to what the best course of action might be.
Preparing for a False Claims Act Case with Employment Co-Counsel
It is important to ask the client as many questions as possible to see what really happened and what they really know. Employment law may involve a lot more direct litigation. False Claims Act cases usually are filed and sealed, and the government then investigates the facts; that’s a little different procedurally. Employment lawyers may be up against different issues in terms of having to file right away to preserve client rights.
A lot of questions are asked, and it’s helpful to work with employment lawyers because they know a lot of the questions to ask with respect to that part of the client’s case. It’s always good to work with the employment lawyers in that respect.
The Differences in False Claims Act Cases
FCA cases are unique because other than the federal and state False Claims Acts, there aren’t many examples for an individual to have standing to sue for somebody else’s harm. Under most tort law, if it’s your knee that got injured in an accident or in a medical malpractice claim, you can sue. Maybe individuals can sue for emotional distress if a loved one is killed or injured, but they would need a pretty direct relationship to the harm in order to sue under most situations in this country. The False Claims Act has a qui tam provision which allows individuals to sue on behalf of the government, and that really is an unusual right that is important to take very seriously and not let anyone take away.
In fact, in the state of Wisconsin, the legislature moved to get rid of the State False Claims Act. These cases can be very complicated cases, usually because government contracting is relatively big business, and/or because there’s a large regulatory structure involved if it’s a healthcare case. It can get complicated even in a case which is a clear violation of the Anti-Kickback Statute, even when that law provides essentially direct liability for the False Claims Act. You still have to show what the inducement was, and how the Anti-Kickback Statute was violated—specifically, who did what to get some kind of wrongful referral or wrongful business or induce a doctor or a service provider to buy a particular product or drug.
There are safe harbors under the Stark Law and the Anti-Kickback Statute. That can get complicated quickly. If it’s a defense contract, it’s likely to involve a lot of money and a lot of specifics and a lot of specifications that can get complicated.
What complicates False Claims Act cases is usually the industry from which the case arrives to the lawyer. At this point, the lawyer has to know about the False Claims Act and sometimes rely on the client for their expertise in the industry, or at least work with the client to become more expert in it.
What Should Employment Attorneys Look For?
It is the rare client that has absolutely every piece of information required to prove everything involved in a False Claims Act case. As a result, a lot depends on where the client was when they found out that the company was acting to misrepresent claims or defraud the government. If they’re relatively high up in the corporation’s structure or have a reason to know about the company’s practices or a way to know what was directly misrepresented to the government, the more they know the better.
Clients who want to report these kinds of issues and who have complained about them usually are pretty good at their jobs, and that’s why they’re upset. They’re upset that either the government is getting ripped off in the form of higher billing or the government is getting ripped off in the form of not getting the quality of whatever it is that they’re being billed to receive.
It’s usually a matter of a client being an expert in their particular subject matter. They might be an expert in anything from hospital billing to a particular type of product or technology produced for the government. They have to really know how something is supposed to be done in order to tell an attorney what the company did that was completely wrong.
The more they know about the contract and about the regulations that have been violated, the more they can show how the company lied and point their legal counsel to where they might find evidence that the defendant lied to the government. They also have to be able to explain what the misrepresentation to the government is that resulted in the defendant’s either obtaining money or keeping money that didn’t belong to them.
The Importance of Where Funds Originate From
Although the False Claims Act was amended in 2009 to create a broader definition of what a claim is under the Act yes it is important to know whether the funds came from the government or not. It’s harder in certain kinds of cases involving quasi-government agencies then it can be a little bit more difficult to establish the government funds being used. Some state False Claims Acts only allow for liability for healthcare funds. So under certain state laws, if it’s only a state law claim and it doesn’t involve a healthcare claim, it might not be actionable under that State’s False Claims Act. In Washington DC, it’s a broad law and it allows for any type of DC funds.
The other thing to consider is that if the case doesn’t really involve government funds but somehow involves securities fraud or some other type of fraud, there may be an action under the SEC whistleblower law or the Commodity Futures Trading Commission whistleblower office. Those were both created by the Dodd-Frank legislation.
There are plenty of government agencies out there and government programs out there that people may not have heard of. Determining what they actually do and where they get their funds is a little tricky, and that can be an issue to research.
So you want to know a little bit about the type of fraud that’s involved and the funds used in order to know what law may apply. Although you may need to research a bit, usually the client knows what’s going on—maybe not everything, but mostly how the organization works.