Qui Tam Lawyer
To sue under almost any other civil matter, a person or a company must be able to demonstrate how the harm that the defendant created affected them. The Qui Tam provisions of False Claims Acts including both federal and many state laws, provide an exception to this which allows individuals to show that the government was harmed and to stand in the shoes of the government and sue on behalf of the government.
This makes a Qui Tam case virtually unique in civil law because a person is not just suing for themselves, or even just reporting a violation to the government, they are pursuing a claim in court on behalf of the government.
As a result, this type of case does involve both an unusual procedure and special substantive issues. A Qui Tam lawyer can be especially helpful in handling both the substance and procedure of matters brought by individuals on behalf of the government. Get in touch with a local attorney to learn more.
Reward Laws
There are other kinds whistleblower reward programs, such as the Securities and Exchange Commission’s whistleblower reward program, the Commodity Futures Trading Commission’s, whistleblower program, both created as a result of Dodd-Frank financial reforms as well as as well as the IRS’s whistleblower Office.
These are important programs with regulations that make it possible for individuals to provide information to those agencies and collect an award if the government takes an action on that information. However, they are not fully Qui Tam statutes, because they do not allow for an independent right to go to court and sue for fraud. They do provide some anti-retaliation provisions, which may be of importance to whistleblowers.
What Percentage of Government Collection is a Whistleblower Entitled To?
The modern version of the federal False Claims Act law dates to 1986 when Congress essentially amended it back into existence. The current share for awards to whistleblowers is between 15 percent and 30 percent. That is 15 percent to 25 percent if the government accepts the case and takes charge of it, what is called intervening in the case.
At that point, the government assumes the responsibility of the litigation, and the whistleblower is entitled to an award of 15 percent to 25 percent of any funds recovered by the government. If the government does not do this, the government declines to intervene and take over the case, and the whistleblower proceeds under the Qui Tam provisions and litigates that case successfully the whistleblower is entitled to 25 percent to 30 percent of whatever they collect on behalf of the government. There are now approximately 30 states with False Claims Act and many of them also include Qui Tam provisions, and most of them also allow for similar award structures, some are little higher, but that is the idea behind Qui Tam provisions, a right given to individuals to sue on behalf of the government.
The Government’s Involvement in a Case
The government will conduct and take charge of an investigation into the whistleblower’s claims after the case is filed initially. During this period of time, which can go for years, the government will take the whistleblower’s information, they will review all of the evidence that the whistleblower can present, will interview the whistleblower and then will conduct an investigation.
In the course of conducting their investigation, they are very likely to return to the whistleblower and whistleblower’s lawyer for clarification, for any additional leads that the whistleblower might be able to provide, to substantiate the allegations. Sometimes the government may ask for the whistleblower and their lawyer’s opinion on the law and regulations pertaining to a particular industry. The government may have follow up questions for the whistleblower in any number of areas pertaining to the case.
So, even though the whistleblower is not in charge of the investigation at this time, and must abide by the seal of the federal court and not talk about the case publicly, they may still be in the position to help the government investigate and help the government recover against the defendant. This, after all, provides the basis for the whistleblower to collect an award under the Qui Tam provision and that is exactly how reward incentives are supposed to work.
What Happens When the Government Reviews a Case?
When government officials review a case, they usually make some kind of determination as to whether or not they want to pursue the case. That determination is generally based on the merits of the case. They may in the course of the investigation determine that there were facts the whistleblower did not know about and it may say, “This case does not work because we found out some stuff that you did not know.” There are of course additional reasons why the government may not pursue a case. The government has broad discretion to decline intervention. If there are no significant damages involved, or if they see no great public policy issue the government may decline to pursue the matter. However, they do also have the discretion to pursue the case. It can strengthen a case if it is possible to show that the government that the violations would have meant the government should not have paid and would not have paid for such a bill.
If in health care, for example, the whistleblower can point to allegations of kickbacks or illegal referrals or violations of the anti-kickback statute or violations of the STARK law, once they get to that level, it is pretty well settled that those would create violations for which the government would not pay medical claims.
Therefore, if the government can substantiate allegations like that, it is more likely to proceed than in most any other kinds of cases.
Why Does the Government Pursue Medical Whistleblower Cases?
If there is a third-party beneficiary case, for example, some individual who receives a healthcare-related service and then there is the government that pays for the service, the government may feel more inclined to investigate allegations of fraud and have more of an ability to prove damages for such fraud. If the government is paying for such services it is on the hook for the money but it may not be in any position to verify the type of services being provided to that third party. If the healthcare service is fraudulent, there is no easy way for the government to have been aware of that prior to paying the bill. So, it pays the bill and learns later that the individual who received the service has been referred to illegally or there was a kickback or the drug was defective.
That puts the government in a pretty strong position to pursue the case, it paid for services but had to rely on the misrepresentations provided to it about those services.
There used to be a straight prohibition under Qui Tam case law against government knowledge. That is not the case anymore. There is not a direct prohibition against bringing the case when the government is aware of the fraud, but generally, when the government does know more about the fraud, it can become a more difficult case to pursue.
The whole health care world, TRICARE, Medicare, Medicaid, state health care plans, government, employee health care plans, all of them can fit into a situation in which the government really is not going to have anyone aware of problems that would create fraud, and those types of cases, are relatively speaking, easier to prove, easier to bring, easier to substantiate than most other types of cases.
Examples of Pursuit-Worthy Cases
Other cases that may fall into this particular window of putting the government in a good position to pursue fraud involve certain kinds of small business loans. The idea behind those loans is to promote small business, and it has happened, somebody fraudulently may represent themselves as a minority or small business and they receive a government loan.
They may even use the loan properly, but they misrepresent to the government who they are in order to obtain the loan. Sometimes grant awards fit into this category of this type of case.
All these types of cases are a little different from a straight government contract from a government contractor who provides the service to the government. While those cases may be complicated they also can be successful.
Is There A Statute of Limitations to File a Qui Tam Case?
The False Claims Act has statutes of limitations like other laws that apply to the underlying fraud and apply separately to the anti-retaliation provisions. They are fairly straightforward with respect to the law, although there is one aspect of it that is a little unusual.
The Federal law currently has a so-called right of repose, which can extend the statute of limitations for underlying fraud up to 10 years under certain circumstances when the federal government was not aware of the fraud for three years. Generally, the statute of limitations for fraud under the act is six years, , but an additional right for the whistleblower to sue for their own damages, if they have been the subject of retaliation is three years.
The Qui Tam rights also are contingent upon filing the case under seal, which is a little unusual, and allowing the government to review the case and investigate the allegations itself prior to the government making a decision as to whether they want to intervene in the case.
Cases Under Seal
Qui Tam provisions do require this extra layer of procedure. First, the whistleblower will generally provide information to the government prior to filing the case. Then, they file the case under seal, and then they serve the complaint and “substantially” all the evidence that they have on the government, and then the government conducts its investigation.
Then, hopefully, the government intervenes and collects some money and the whistleblower would be entitled to an award under the Qui Tam provisions. That is how it is supposed to work, of course, along the way, there are usually any number of obstacles or issues that can slow down the process.
One of the things that is a little difficult for people to absorb when they first read the False Claims Act is when they read the provision of the law that says the case will remain under seal for 60 days. The 60 days gets in some people’s minds. However, if they keep reading, it says the case will remain under seal for 60 days and may be extended for good cause shown.
What that means is that the government can move the court to extend the seal and in practice, the government almost always does move the court to extend the seal beyond that initial 60 days. The case can, in fact, remain under seal for several years while the government conducts its investigation.
Retaliation Suits
Many laws do allow individuals to sue when they have been the subject of retaliation as a result of acting as a whistleblower. These are important rights, which are included in many of the laws. However, this right is still not the same as being able to sue on behalf of the government, which is what defines the right to a Qui Tam procedure.
This is an important right for individuals to be able to protect their government and bring a case. As a result it there is also an unusual procedure to file a Qui Tam action. It even can involve special names. They often call plaintiffs in qui tam actions “relators” or the plaintiff-relators or the Qui Tam relators all to refer to the same people who file the case.
Working with a Qui Tam Lawyer
When filing a Qui Tam action, the client relationship with a Qui Tam lawyer must be close. The Qui Tam provisions require the case to be filed under seal. An individual must be extremely careful not to discuss the case, while it is under seal. Since these matters usually involve the most important events in any individual’s professional life, the restriction not to talk about it is a heavy burden.
The plaintiff-realtor can, of course, discuss the matter with their counsel and with government officials who will want counsel present for such discussions. Any information about the case may turn out to make a difference to the investigation and the case can take a long time. In that period of time, a relationship of trust must be developed between the attorney and the client, even more so than in most civil litigation.
Clients need to be able to talk to their attorneys about the details of these cases and even just to be able to discuss the case generally without violating the seal or in any way damaging the case.
Why Work with an Attorney?
Whistleblower know that they are not going to collect anything in a False Claims Act case unless their case is successful. Almost everybody who practices Qui Tam and False Claims Act law knows that only the very best types of cases work. It is possible to find out more about the case and the potential it may have without having to incur significant expenses as most counsel in this field work on contingency. As a result most counsel will only file cases they believe have merit and in which they wish to provide as much help as possible for success.
Working with a Qui Tam Attorney
Cases can stay under seal for several years, while the government conducts its investigation into the whistleblower’s allegations.
That lengthy period of time, while the case is under seal and while the Qui Tam plaintiff-relator is waiting to hear what the government discovers about the allegations in their complaint, is difficult for anybody. Therefore, the client and their Qui Tam attorney have to work as a team and be able to confide in each other as to the private progress of the case.
The cases may involve complicated sets of facts learned by the plaintiff-relator over a long period of time. It is also important that the attorney and the client are able to work together, because mining the details of the case from the individual’s knowledge, may be quick but generally it is not. Both the Qui Tam attorney and client need to be able to focus on the facts that support the allegations with respect to fraud against the United States.
