Building a False Claims Act Case

Building a false claims act case is a multilayer process. For a strong case first and foremost, one needs a whistleblower with the solid information about fraud committed against the United States. While that is absolutely required to bring a case, it is only the beginning. One has to follow the underlying False Claims Act law to see if the facts alleged demonstrate a false claim. Talk to a professional false claims act lawyer for more information.

What to Expect When Building a False Claims Act Case

Whistleblowers should expect to have to go through their memory and think very, very hard about everything that they know about the case. They should expect that they’re going to spend a fair amount of time re-living whatever they submit to the government and that they’re going to discuss whatever they submit with the government officials. Finally, they should expect to have to be quiet about it—not talk about it to anyone else—for some period of time, and also that it will take some time to resolve their case, hopefully favorably.

Nonetheless, many whistleblowers are pretty willing to go through it, because they’re committed to reporting what they see is wrongful activity. Most whistleblowers take it very seriously and understand that it is a serious process.

Investigations When Building a False Claims Act Case

At the initial stage of building an FCA case, a lawyer in DC investigates and reviews everything the whistleblower has to say about the case. Then the government does its investigation—and they may do a very extensive investigation—and if the case goes forward into litigation from there, obviously that would create a whole new round of investigation. So it can take quite a lot of time to fulfill this part of the case.

Factors for Making a Viable Fraud Claim

There are a lot of technical requirements under the False Claims Act, but both the whistleblower and their lawyer should always keep their minds on whether or not there is visceral fraud and how the government has been defrauded. If you can explain that, then you probably have a strong case. Usually, if there’s a visceral fraud, it’s also going to violate lots of little regulations along the way, and that’s really what you want to know. You want to be able to show that the government flat-out lost something, something that mattered.

In addition, any time there’s some inference of a safety issue or if something is defective, whether it’s in the healthcare field or any other field, people’s lives could be endangered. If there’s any type of implication that the false claim(s) or the product defect(s) involved threatens public safety in any way, that’s also a factor that’s worth considering.

In short, the False Claims Act doesn’t exist to protect the government against somebody doing their job poorly or negligence or weak contract cases. The False Claims Act is about the government being the victim of contractors who knowingly are trying to make money at the expense of what they’re supposed to be doing, and it’s pretty obvious. A good False Claims Act case is built around an obvious fraud, but when that fraud also leads to a safety issue, the government obviously notices.

The Attorney-Client Relationship in False Claims Act Cases

One of the fun things about being a lawyer in Washington, D.C. this field is the relationship one develops with a client over time. In many kinds of law, you do your job and you go home, and you don’t necessarily develop much of a relationship with your clients.

Whistleblower cases are tricky, though—they take a long time, and they involve very, very serious matters both as far as your client is concerned and to the public. Hopefully, you end up developing some level of trust and relationship with your client. Most whistleblowers are very interesting people, and working with them can be especially rewarding.

Materiality in a False Claims Case

Materiality has become a huge issue under the False Claims Act and being able to show that is crucial to a successful case. What that comes down to usually is a determination as to whether or not the government would have paid for the claims with knowledge of the information that the whistleblower is bringing forward.

If it is clear that the government would not have paid, then the whistleblower has a stronger case. Many factors can enter into such a demonstration. Was the payment in and of itself lawful? Are there laws that were violated as part of the payment procedure? While the question of materiality is clear, demonstrating it may take much more work.

Kickbacks Involved

Some kinds of cases make this demonstration easier. When there are obvious kickbacks involved, then the materiality issue, particularly in payment by Medicare and Medicaid, is relatively easy to overcome. If it is a contracting case providing services or goods to the government, and no such evidence of kickbacks exist then it may be more difficult to demonstrate materiality. Building a strong case requires working to present evidence that a whistleblower revealed is not only a matter of misrepresenting facts to the government but also such an event that induced the government to pay for something that they otherwise would not have.

Information Involved

What a whistleblower needs in order to build a false claims act case is information. If the individual has documents – obtained legally and that are not privileged – that kind of information can be very valuable to the case. A whistleblower should be able to explain what the documents are and why they are relevant to the case. This can take time because some whistleblowers have tremendous amounts of documentation. It can be a large amount of work for both the whistleblower and the lawyer to determine which documents actually matter, why they matter, and how they help construct the case.

No Documentation

If the whistleblower has no documentation, or even if whistleblower does have documents, the other element that is going to be required to build the false claims act case is the whistleblower’s own memory. Explaining the facts the whistleblower remembers can also take work. Whistleblowers may focus on an event of particular importance to them that is personal. Most of the time, whistleblowers decide to file a false claims case after they have already suffered from retaliation and that retaliation may be understandably foremost in a whistleblower’s mind.

After all the whistleblower may have been fired, harassed, or demoted. These are the types of events which are very difficult for whistleblowers to put to the side. Unfortunately, while they may be important to the individual whistleblower, and indeed they may even be important to a retaliation claim under the law, they are not the central issue in a false claims act case. It can be difficult to mine the whistleblower’s memory for information, which will support the underlying false claims act case. The whistleblower also may not know every relevant fact in a case. It is important to know if the whistleblower is aware of any other sources of information to  direct the government to obtain including to other witnesses who could support the claims.

Multiple Whistleblowers

Whistleblowers often know of other people who have been fired from the same organization who might support their allegations. This process can become even more complicated when there are two whistleblowers. Building a case with two whistleblowers requires determining that the two whistleblowers are able to work together, have no particular reason to be in dispute and want to bring the case together. Sometimes though having multiple whistleblowers who can corroborate each other’s stories makes for a stronger case. Talk to a professional lawyer for more information on building a false claims act case.