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Do I Need an Attorney to File a Qui Tam Lawsuit?

Do I Need an Attorney to File a Qui Tam Lawsuit

Do I Need an Attorney to File a Qui Tam LawsuitWhen an individual decides to file a lawsuit, they can choose whether they want to have an attorney represent them in the case. But, do I need an attorney to file a Qui Tam lawsuit? The answer is yes. You don’t have the choice to represent yourself with qui tam lawsuits. If you intend to file a qui tam lawsuit, you must do so with an attorney.

Filing a Lawsuit Pro Se

When an individual decides to start a lawsuit, they normally get to decide if they will hire an attorney or not. Most people will not take this route; they prefer the confidence that comes from having a seasoned attorney on their side. When a plaintiff does try a case without the help of an attorney, they are acting “pro se.”

There are several reasons why an individual may make this decision. One of the biggest reasons is to save money. In complex cases, such as qui tam actions brought under the False Claims Act, a client may feel what the attorney earns is more than they deserve. Given that, they choose to go it alone, without legal counsel.

Trying a case without the help of an attorney isn’t the smartest thing to do, but it’s theoretically possible and allowable – most of the time. One exception to this rule exists with qui tam lawsuits.

Do I Need an Attorney to File a Qui Tam Lawsuit? Yes, Only an Attorney May File a Qui Tam Lawsuit

A whistleblower who wishes to file a qui tam lawsuit must have an attorney represent them. This is because the qui tam lawsuit isn’t really the whistleblower’s case. It belongs to the US government. Therefore, it’s the government that should make the decision as to whether an attorney will bring a qui tam action.

Just like you’re able to choose if you want to hire an attorney or go pro se with your case, the US government has that choice as well. The only difference is that the US government realizes it’s not wise to try a qui tam lawsuit without an attorney’s help.

Why Should You Use an Attorney to File a Qui Tam Lawsuit?

Besides the fact that the law requires it, using an attorney to file a quit tam lawsuit – or any other lawsuit, for that matter – is simply a good idea. Many people who try a case pro se do so because they think they know what they’re doing. Unfortunately, they usually don’t. Let’s look at an example to illustrate.

Let’s say you want to sue your insurance company for refusing to pay a homeowner’s claim covered under your insurance policy. You’re confident you are correct, and the insurance company is wrong. You decide to file a lawsuit for breach of contract. Do you know how to do that? Maybe the person at the front desk at the clerk of courts is really helpful and tells you how to do it. Great! You’re all done with filing the complaint, right? Unfortunately, it’s not that simple.

Did you file the complaint in the right court? “Of course,” you say, because you filed it in the county where your house is. But what if you could choose between two county courts? The county you live in is very conservative, or what most attorneys would consider “pro-defense.” But a neighboring county is what many attorneys would consider very “pro-plaintiff.” Do you still think you picked the right county courthouse to file your lawsuit? Just figuring out where to file your complaint is complex enough, even in an example that often trips up some attorneys.

And we haven’t even gotten to your complaint yet. Did you prepare it properly? Is your state a fact pleading or notice pleading jurisdiction? How and where do you intend to serve the complaint?

It’s easy to see how something that seems so simple is actually rather complex. If you’re having trouble figuring out how to serve a complaint on an insurance company in a simple lawsuit, how will you figure out how to serve the defendant in your qui tam action? If you don’t know, that’s good — that was a trick question! You actually don’t serve the complaint on the defendant in a qui tam action after it’s filed with the court. You could get into serious legal trouble if you served a qui tam complaint on the defendant while the case was still under seal (kept secret).

Bottom Line? Get an Attorney

If you don’t think you need an attorney to file a qui tam lawsuit, you’re wrong. Fair or not, that’s the law. So if you’re thinking about hiring a qui tam attorney, call 770.643.1606 to speak with Bothwell Law Group.

How Does a Qui Tam Lawsuit Work?

How Does a Qui Tam Lawsuit Work

How Does a Qui Tam Lawsuit WorkQui tam lawsuits work by rewarding a whistleblower who sues a person or organization that is defrauding the US government. Since the government is unaware of most of the fraud taking place against it, it relies on whistleblowers to bring the fraud to the government’s attention. One way this occurs is when the whistleblower sues the wrongdoer on the government’s behalf. In return for doing this, the whistleblower gets a portion of the money recovered by the US government.

How Does a Qui Tam Lawsuit Work:  Background

Qui tam lawsuits fall under the False Claims Act. The False Claims Act is an old law, dating all the back to the Civil War. Back then, various contractors were defrauding the Union (and Confederate) government by selling war goods that were faulty, inadequate or otherwise unfit for use. To counter this problem, Congress passed the False Claims Act, which created liability on those who would defraud the government.

As a way of making the False Claims Act more effective, Congress added a qui tam provision. This allows individuals to collect a reward if they help the US government recover money taken through fraud. This “bounty” sounds like a good idea, but how exactly does the process work?

How Does a Qui Tam Lawsuit Work:  The Beginning

To start a qui tam lawsuit, there must be a whistleblower (also called a relator). A relator is someone who has knowledge of the fraud and can use that knowledge to sue (or help the US government sue) the person or organization who is defrauding the government. The government relies on relators because the government is unaware of most of the fraud that takes place. Additionally, even if the government suspects possible fraud, it won’t have anywhere near the knowledge or access to information that someone inside the defrauding organization would have.

Once someone decides to be a whistleblower, they must file a complaint in federal court, just as they would in a normal civil lawsuit. But what makes the qui tam lawsuit different is that the relator must file the complaint “under seal.” This means the whistleblower cannot reveal the qui tam lawsuit to the defendants or the general public. Instead of notifying the defendant, the relator will notify the relevant US Attorney and Attorney General of the United States by providing them with a copy of the complaint.

The next step involves the government investigating the alleged fraud. This can take many months. While this investigation takes place, the qui tam complaint will remain under seal. The US government will complete its investigation and conclude whether to “intervene” or join the lawsuit. Even if the government decides not to intervene, the relator can still continue the lawsuit. However, it makes the chances of success much less likely. This is for a couple of primary reasons:

First, the relator can’t rely on the resources of the United States to pursue the qui tam lawsuit. If the defendant is a powerful and wealthy corporation, it might be able to force the relator into giving up on the case, regardless of how much merit it has.

Second, if the US government decides not to join the case, it probably means it believes there’s not a good chance of winning. The defendant knows this, so if it sees the government backing out, it knows the relator doesn’t have a strong case.

Whether the US government joins or not, the case can continue with the relator setting out to prove that fraud has taken place.

How Does a Quit Tam Lawsuit Work:  Potential Reward for the Whistleblower

Assuming the qui tam lawsuit is successful, the relator may recover a certain percentage of the total amount of money recovered by the government. The percentage will vary depending on the facts of the case, whether the government intervened and if so, how much assistance the relator provided during the case. Typically, the relator can expect a reward of between 10% and 30% of the total recovery. The higher 25% to 30% amount is usually for relators who win cases the US government refused to join.

How Does a Qui Tam Lawsuit Work:  Whistleblowing Risks

The idea of collecting a sizeable reward entices many people to become whistleblowers. But to see a case all the way through to completion takes a lot of time, hard work and risk. For example, when the relator files the qui tam lawsuit, they have some level of anonymity, but many organizations can eventually figure out who the whistleblower might be if they go digging. Even if the anonymity remains at the beginning of the case, the person’s name usually comes out during the trial. And in the rare cases where it does not, the anonymity vanishes when the person collects their reward.

All this means the relator is at risk of retribution and retaliation. The False Claims Act has special provisions to prevent this, but it’s difficult to prove retaliation. Much of it is very subtle and underhanded. A whistleblower can possibly become blackballed after filing a qui tam lawsuit, resulting in the inability to find work in their chosen industry or field – but it can be impossible to prove who did it.

Interested in Getting an Award under the False Claims Act?

If you’d like to learn more about how does a qui tam lawsuit work, please contact Bothwell Law Group by calling 770.643.1606 today.

Is There a Deadline for Filing a Whistleblower Qui Tam Lawsuit?

deadline for filing a Whistleblower Qui Tam Lawsuit

deadline for filing a Whistleblower Qui Tam LawsuitThe deadline for filing a whistleblower qui tam lawsuit is generally six years following the alleged fraud against the US government. This time constraint is also called a statute of limitations. The statute of limitations exists in most civil causes of action.

Deadline for Filing a Whistleblower Qui Tam Lawsuit

Anyone who chooses to file a qui tam lawsuit must file the qui tam complaint either:

● Six years after the alleged fraud took place, or
● Three years after an official of the US government knew (or should have known) of the alleged fraud, but no more than ten years after the alleged fraud took place.

Most of the time, the deadline for filing a Whistleblower Qui Tam lawsuit will be six years. So if the defendant submitted a false invoice to the US government on June 3, 2011, the person bringing the qui tam lawsuit (also known as the relator) must file the qui tam complaint no later than June 3, 2017.

But in some instances, a relator may be able to file its qui tam lawsuit for a possible fraud that goes back ten years, but only if the qui tam lawsuit filing is within three years of when the relator knew (or should have known) about the alleged fraud. Confused? Don’t worry; it gets worse.

Not all courts interpret the “ten year” qui tam statute of limitations as applying to relators. Most courts will only apply this extended deadline to the US government when it joins in the lawsuit. So, to summarize:

● A relator will always have at least six years from the date of the alleged fraud to bring a qui tam lawsuit.

● In a minority number of federal courts, the relator will have ten years from the date of the alleged fraud to start the qui tam lawsuit, as long as the relator is filing the qui tam lawsuit within three years of when he or she learned of the alleged fraud.

● In a majority number of federal courts, the ten-year deadline never applies to relators, just the six-year deadline. So only the US government can take advantage of the extended deadline if it joins in a qui tam lawsuit within three years of learning of the alleged fraud.

The Wartime Suspension of Limitations Act

Until recently, the law was unclear as to whether the Wartime Suspension of Limitations Act could extend the False Claims Act’s qui tam statute of limitations. The Wartime Suspension of Limitations Act temporarily pauses the statute of limitations for “any offense” involving fraud and the US government during times of war.

So for the period where the US government was at war, the normal six-year qui tam statute of limitations “clock” wouldn’t be running. This could drastically extend the amount of time someone has to bring a qui tam lawsuit. For instance, if an alleged fraud took place on August 8, 2005, and the United States was at war from August 8, 2006 to August 8, 2012, a relator might have until August 8, 2017 to bring a qui tam lawsuit. This means that the qui tam lawsuit would end up starting 12 years after the alleged fraud.

A few years ago, the United States Supreme Court ruled that the Wartime Suspension of Limitations Act did not apply to the six-year qui tam statute of limitations of the False Claims Act. Instead, the United States Supreme Court only applied the Wartime Suspension of Limitations Act to criminal prosecutions, not civil prosecutions. Therefore, the above hypothetical where a relator could begin the qui tam lawsuit up to 12 years after the alleged fraud would not be permissible by law.

The “First to File” Deadline

While the statute of limitations is the “official” deadline for filing a whistleblower qui tam lawsuit, there’s another deadline to consider.

To bring a qui tam lawsuit, there can be no other pending qui tam lawsuit based on the same set of facts. The purpose of the qui tam lawsuit is to make the government aware of a specific fraud, put a stop to it and recover any damages it might deserve. But if a qui tam lawsuit is already pending concerning a specific fraud, the government receives no benefit if a second qui tam lawsuit begins.

Therefore, an individual thinking about filing a qui tam lawsuit could very well have a deadline less than six years from the date of the alleged fraud if someone else is about to file their own qui tam lawsuit.

Let’s say an alleged fraud occurred on February 10, 2017. Several people are aware of the fraud and have plans to file a qui tam lawsuit. The practical deadline for filing a whistleblower qui tam lawsuit could be just a few months, depending on how quickly other individuals file their qui tam complaint with the court.

Worried About a Possible Deadline for Filing a Whistleblower Qui Tam Lawsuit?

If you are considering bringing a qui tam lawsuit, you need to act as quickly as possible. Even if the six-year statute of limitations deadline is years away, there could be someone else who files a qui tam lawsuit before you that deals with the same alleged fraud.

If you have a possible upcoming deadline for filing a whistleblower qui tam lawsuit, you should contact the Bothwell Law Group as soon as possible by calling 770-643-1606.

Who Can File a Qui Tam Action?

file a qui tam action

file a qui tam actionFiguring out who can file a qui tam action is usually straightforward. However, there are several instances where certain limitations will prevent a particular individual or group of individuals from being allowed to file a qui tam action or otherwise recover a reward for exposing fraudulent activity against the federal government.

Who Can File a Qui Tam Lawsuit?

Qui tam actions are legal suits where someone brings a lawsuit against a defendant on behalf of the federal government. Usually, the defendant in a qui tam lawsuit is a corporation. Under the False Claims Act, the “relator” is the person (or whistleblower) who brings the qui tam lawsuit. Relators can include a wide range of individuals and organizations, including:

● Public interest group
● Corporation
● Private organization
● Unions
● Contractors and subcontractors
● Former employees
● Private employees
● State governments
● Local governments
● Public employees, including federal government employees

Most of these entities or individuals acting as relators aren’t that controversial, but a few are. One of the most contested groups of relators includes those who are federal government employees. This is controversial because of potential conflicts of interest and the issue of whether a federal employee should profit from inside knowledge it may obtain throughout the course of duties as a federal employee. Courts are very hesitant to allow federal employees to line their pockets based on information they’re supposed to be finding as a part of their job.

Sometimes, federal employees can act as relators, but they end up losing their qui tam case because they’re not able to meet other qui tam requirements, such as the public disclosure requirement that requires the knowledge provided by the relator be information that is not otherwise available to the general public. Many corporations have served as a relator, but have later lost their qui tam lawsuits because they are unable to meet the public disclosure requirement.

Generally speaking, most relators are employees or former employees of corporations who are doing business with the federal government.

Who Isn’t Allowed to File a Qui Tam Action?

The False Claims Act specifically identifies several situations or limitations on who can file a qui tam action. The first restriction involves relators who received a conviction in a criminal court related to the very fraud they are trying to report. Essentially, the False Claims Act will not allow someone to profit from their own wrongdoing.

A second restriction comes up after filing a qui tam lawsuit. When someone else is first to file a qui tam lawsuit, other qui tam lawsuits cannot go forward. These not-first-to-file whistleblowers are unable to file a qui tam lawsuit and are not allowed to take advantage of situations where someone else did all the whistleblowing legwork.

There is also a blanket restriction for anyone filing a qui tam lawsuit when the federal government is already involved in litigation concerning the alleged fraudulent activity. The federal government isn’t eager to reward whistleblowers who are providing information about false claims and fraud that the government is already aware of and is in the act of prosecuting.

Another blanket restriction exists if the qui tam lawsuit uses information already released to the general public. This is the public disclosure requirement. However, if the relator was the “original source” of the information that is now public, the relator will still be able to continue the qui tam lawsuit.

Who Are Common Qui Tam Defendants?

Many qui tam lawsuits are against government contractors, subcontractors, medical providers, and state and local government entities. Theoretically, almost any individual or person who receives money from the federal government in a business transaction can be subject to a qui tam lawsuit.

General contractors can also be liable for the False Claims Act violation of their subcontractors even if the general contractor did nothing wrong. Public policy emphasizes that general contractors must be responsible for the wrongs of their subcontractors to help protect the federal government from fraud (many subcontractors often have very little money for the federal government to recover in any False Claims Act lawsuit) and encourage general contractors to carefully choose their subcontractors.

What Is the Public Disclosure Requirement to File a Qui Tam Action?

The purpose of the public disclosure requirement is to prevent relators from collecting a reward based on information they had little involvement in providing to the federal government. Another qui tam lawsuit requirement related to the public disclosure requirement is the original source requirement. The original source requirement states that the relator must be a person who has independent knowledge of the alleged fraud that comes from no other source or otherwise substantially adds to already public information.

Contact Bothwell with Your Questions about How to File a Qui Tam Action

If you’re wondering whether you’ll be able to file a qui tam action, get the answers you need by contacting the Bothwell Law Group by calling 770-643-1606.