Whistle Blower Actions
Representing Whistleblowers in Qui Tam Actions The federal False Claims Act (FCA), 31 U.S.C. § 3729, et seq., allows an individual with knowledge of fraud committed against the United States government to file a lawsuit on behalf of the federal government against the person or business that perpetrated the fraud. The FCA has proven to be one of the most effective tools in fighting Medicare and Medicaid fraud, defense contractor fraud and other types of fraud perpetrated against the federal government. The purpose of the FCA is to enlist the help of private citizens in protecting the U.S. Treasury (and taxpayers) from increasingly sophisticated fraud. In successful actions, the individual who brought the lawsuit, also known as the qui tam plaintiff or relator, is awarded a percentage of the total recovery. Since the FCA was amended in 1986, the U.S. government has recovered more than $8 billion as a result of whistleblower lawsuits and qui tam plaintiffs have been awarded nearly $1.5 billion. In addition to claims under the FCA, Freed Kanner London & Millen also handles cases brought under parallel state laws, including the Illinois Whistleblower Reward and Protection Act, 740 ILCA § 175/1 et seq. (based on fraud committed against state agencies).
Who can be a plaintiff?If a fraud has not previously been publicly disclosed, anyone can bring a qui tam action, even without direct personal knowledge of the fraud. In other words, someone who learns from a co-worker that his or her employer is committing a fraud against the U.S. government may initiate a qui tam action. If the fraud has already been disclosed to the general public or via a lawsuit or investigative proceeding, an individual may still be able to bring a qui tam action if he or she has additional direct knowledge of the fraud, independent of the information that has already been disclosed. Many qui tam plaintiffs are employees or ex-employees of companies (private contractors) that defraud the government, but anyone with knowledge of the fraud should seek legal advice to determine whether he or she qualifies to bring a qui tam action. Taking prompt action can be critical because only one person can file a case under the FCA for a particular fraud. In addition, the statute of limitations under the FCA can be as short as six years.
Filing a qui tam lawsuit.A qui tam lawsuit under the FCA is filed “under seal” in federal court. Once filed, but before the named defendant is notified, the United States Department of Justice (DOJ) must be informed and provided with all available information about the fraud in question. The case remains “under seal” while the government investigates, which can last anywhere from 60 days to several years. Upon completing its investigation, the DOJ has the option of intervening and taking over prosecution of the lawsuit from the qui tam plaintiff. A qui tam plaintiff's share of any ultimate recovery depends on whether or not the DOJ chooses to intervene. If the DOJ takes over, the qui tam plaintiff is entitled to between 15% and 25% of the recovery. If the Justice Department does not intervene, and the qui tam plaintiff pursues the action individually, the qui tam plaintiff is entitled to between 25% and 30% of the recovery. In some cases the qui tam plaintiff's share can amount to many millions of dollars. The law also states that a liable defendant must pay three times the government’s losses plus a fine for each false claim. When settling a case under the FCA, the government often agrees to accept two to three times the amount of the damages suffered by the government and typically forgoes any additional fines. The defendant also must pay the fees and the case-related expenses of the qui tam plaintiff’s legal counsel.
What types of fraud qualify?Fraud is defined very broadly under the FCA. It is not necessary to show that a defendant acted with knowledge and intentionally defrauded the government. The FCA also covers reckless conduct or “deliberate ignorance.” The law also allows recovery from those who “cause” misrepresentations to be made to the federal government by others (for example, by providing false information that is subsequently submitted to government by someone else). The FCA has been used successfully to prosecute, among other things, defense procurement fraud, health care (Medicare/Medicaid) fraud and fraud by builders or managers of federally subsidized housing. The possibility of fraud exists in virtually any area where U.S. government purchases goods or contracts for services.
Protection for the qui tam plaintiff.The FCA protects whistleblowers who are threatened, harassed, fired or otherwise retaliated against for investigating, filing or assisting a qui tam action. Available remedies include reinstatement and damages of double the amount of lost wages if the employee is fired, and any other damages sustained if the employee is otherwise discriminated against.
Retaining legal counsel.For some qui tam plaintiffs, experienced lawyers may be prohibitively expensive if retained on an hourly basis. Under a contingent fee arrangement, however, Freed Kanner London & Millen will not charge any legal fees unless the qui tam plaintiff recovers damages from the defendant, whether through settlement or a verdict. If the qui tam plaintiff does recover, the firm will receive an agreed upon percentage of the plaintiff’s recovery as its legal fees.FCA cases and procedures are unique, and a specialized knowledge of the law can be the key to a successful outcome. Many qui tam cases have the potential for very large recoveries and can take years to resolve. Accordingly, it is important for a qui tam plaintiff to choose counsel with the resources and experience needed to engage in protracted litigation against large corporations and their attorneys. Freed Kanner London & Millen does not shy away from such challenges and has an established track record taking on some of the largest corporate interests in the United States.
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