Most Recent Changes in False Claims Act Law

Below, False Claims Act lawyer Tony Munter answers questions about the most recent changes to whistleblower law.

Have There Been Any Recent Changes to Whistleblower Law?

Tony Munter: Well, with regards to the False Claims Act anyway, the most recent, major issues, I think, occurred in 2009 and 2010 under what’s called the Fraud Enforcement and Recovery Act, and then the Affordable Care Act.

These laws expanded the definition of claim. They expanded the definition of obligation and created some real improvements to the False Claims Act as a result of some case law that was at the time, damaging to the ability of the government and plaintiff’s to pursue certain cases.

So for example, the Public Disclosure Bar which used to be a jurisdictional matter and that used to mean that somebody could bring it up at any point and you have to litigate whether or not the plaintiff was an original source of the information, was altered and it’s not jurisdictional anymore and the standard for who can be an original source is greatly expanded.

The claim issue was a big deal because, for some time, there was a question as to, what constituted a claim and if somebody hadn’t actually presented a claim to an officer of the United States or wasn’t directly billed to the United States, it was difficult to sue under the federal False Claims Act. Now, you can as long as you can show a connection to federal government money. In some way along the line, you can sue.

So sub-contractors and contractors cannot escape liability because of one level or another level presenting the bill to the prime contractor or the sub-contractor. So there’s been some serious improvements, I would say, in the 2009 and 2010 amendments to the law.

Do You Feel These Helped the Whistleblower or the Businesses?

Tony Munter: Those can help the whistleblower. It’s a constant battle. There are some very smart attorneys working on the other side to defend a company who gets sued under the False Claims Act and they’ve been able to fight successfully on some unusual and in some cases, correct, I guess, theories of law but those particular amendments in 2009 and 2010 were very helpful to the whistleblower.

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