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Elements of Good Qui Tam Lawsuits

qui tam lawsuit

qui tam lawsuitsIf you think you have discovered your employer has been committing fraud against the federal government, you may have a whistleblower case. Referred to as qui tam lawsuits, they are authorized under the False Claims Act.

This provides a viable way for ordinary citizens to bring an action against perpetrators of fraud against the government. The False Claims Act also provides the whistleblower protection from retaliation. If the government chooses to intervene, there is potential for a large reward for you if you are the relator, the term for the one who brings the legal action.

Not every situation that appears a company or person has committed fraud has the necessary elements to become a qui tam lawsuit. There are some important factors for you to consider in determining whether or not you have a case.

Acts That May Give Rise to Qui Tam Lawsuits

The False Claims Act defines types of violations that may give rise to qui tam lawsuits.

  • Knowingly presenting false or fraudulent claims for payment to the government.
  • Submitting a false record to the federal government in order to have a claim paid.
  • Knowingly being part of a conspiracy to ask the government to pay false claims.
  • Submitting a knowingly false statement or record to the government in order to avoid an obligation to transmit funds or property to it.

If you are aware of any of the activities, you may be on your way to filing a qui tam action. You still have some questions to answer for yourself before you pursue litigation.

Factors to Consider Before Filing your Qui Tam Action

A qui tam attorney will help you find your way through the false claims jungle. But, some questions you should answer before contacting legal counsel include:

  • Has there really been fraud? Do not confuse mismanagement, waste or a contractual dispute with fraud.
  • What evidence do you have to support your claim? This is a touchy area. You need to have more than just your word against the company that you claim is acting fraudulently. Do you have emails? Work logs? Any company records that are not proprietary? There is a fine line between documentation that you obtained legally and company records that are confidential and to which you do not have legal access.
  • Is this the type of action where you believe the government will intervene? Without government intervention, many cases are dismissed by courts on the theory that if the government will not intervene, the case may not have merit.

There are many other requirements and nuances involved in filing a qui tam lawsuit. An experienced qui tam lawyer will evaluate your information and help you know if you have a case. Contact us today. We would be happy to help you determine whether you’ve got a case.

How Knowing the False Claims Act History Can Help Your Case

False Claims Act History

False Claims Act HistoryThe False Claims Act History is a long one. Qui tam laws date back to the Middle Ages in England. Nearly 700 years ago, King Edward II came up with a one third reward to individuals (relators) if the relator successfully sued government officials who were moonlighting as wine merchants.

Two hundred years later, Henry VII followed suit. The Maintenance and Embracery Act 1540 allowed individuals (common informers) to sue for certain interference with justice in land title related legal proceedings. Ireland still has this act in force today.

So, how does this relate to America?

During the American Civil War (1861 – 1865), all kinds of fraud was going on such as:

  • Contractors selling decrepit mules and horses in ill health to the Union Army
  • Some contractors selling rancid provisions and rations to the Union Army
  • Contractors selling faulty rifles and ammunition to the Union Army

Because of this and other acts, Congress passed the False Claims Act on March 2, 1863.  At times, the False Claims Act is called the “Lincoln Law”.  This is because President Abraham Lincoln was in office at the time.

Under the False Claims Act, the qui tam provision offered a reward permitting citizens to sue on behalf of the government. As such, said “whistleblowers” can receive a percentage of the recovery.  U.S. Senator Jacob M. Howard sponsored this legislation.  He knew some of the whistle blowers were a part of the unethical activities themselves. However, he said “I have based the [qui tam provision] upon the old-fashioned idea of holding out a temptation, and ‘setting a rogue to catch a rogue,’ which is the safest and most expeditious way I have ever discovered of bringing rogues to justice.”

Over the Years

The False Claims Act has primarily been used against defense contractors. However, health care fraud began to receive more focus in the 1990s. By 2008, health care fraud accounted for 40% of recoveries.

In 2009, the Fraud Enforcement and Recovery Act of 2009 (FERA) passed into law. Among other things, this Act increased the protection of qui tam relators.

There were multiple major changes to the FCA because of this Act.

President Barak Obama’s signature put the Patient Protection and Affordable Care Act into place in 2010.

By 2014, thirty states and the Disctrict of Columbia now have False Claims statutes. These are in place to protect publicly funded programs from fraud.

Knowing the False Claims Act History can help your case. For hundreds of years, individuals have been able to file claims on behalf of the government. The laws are for people like you who know of others committing fraud against the government or against individual states.

If you do know of fraud, contact a whistleblower attorney as soon as possible.

How to Tell If You’ve Hired the Best Whistleblower Attorneys Available

best Whistleblower Attorneys

best Whistleblower AttorneysIs it worth it to hire the best whistleblower attorneys? Qui tam cases can result in rewards in the hundreds of thousands of dollars or more. When that kind of money is on the line, you don’t want to take chances. If you are building your dream home, you want the best housebuilders around. If you are bringing a qui tam case, you want the best whistleblower attorneys to help you.

Here are a few factors to consider as you determine whether or not you’ve found the best whistleblower attorneys for your qui tam case:

The Best Whistleblower Attorneys Know Their Stuff

It’s pretty simple to become the lead dog at anything; you need to know what you’re doing. The greatest teacher is experience. When you look for a whistleblower attorney, look for someone who has a track record proving their knowledge and their ability to win.

Most attorneys have an area in which they excel and focus and receive ongoing training in that area, and also know the most up-to-date information. When it comes to whistleblowing, the entire process is very detailed and can be complicated. Your attorney needs to know the best move to make at each stage of the game.

Don’t settle for an attorney with just a winning track record in court. You want to choose an attorney with a winning record for qui tam cases. The qui tam case is different than many other types of lawsuits because you are bringing a case to the government for investigation. There are layers of red tape and plenty of I’s to dot and T’s to cross, so everything is laid out according to the rules.

Many attorneys have experience in employment discrimination suits or class action suits, which have certain commonalities with False Claims Act suits, but this is not the same as a lawyer who knows how to handle the critical differences of a whistleblower suit properly. Make sure you choose an attorney with a proven track record of qui tam cases they have won in court.

A good qui tam case requires a lot of resources, both financial and human. There are a lot of expenses involved in building a whistleblower case. Money is needed for investigating, filing papers, and hiring consultants to research and analyze documentation. Every allegation needs to be substantiated, and that takes time and money.

Experienced whistleblower attorneys have a team of lawyers and other professionals to take on the work. Experts, each working in their particular area, will put together the most airtight case possible. These experts will need to meet with you to consult and gather your information. The right whistleblower attorney may even take care of the travel expenses for you.

Look for Whistleblower Attorneys You Like

A strong whistleblower case doesn’t happen quickly. It can take as long as three years, so you want to make sure you like your attorney. While their knowledge and track record are both critical, you need to have an attorney who you like so you don’t cringe every time you have contact. Your attorney is the one who not only puts your case together but also negotiates your reward, so a solid working relationship is important.

Make sure the attorney you choose is willing to listen to you and provide you with updates on the case. While you can’t expect him to call you with every little detail, you should receive regular updates when progress takes place.

Your qui tam attorney must convince the Department of Justice to intervene and take on your case. While the strength of your case will be the determining factor, a good relationship can only work in your favor.

Whistleblowing can be very stressful, and you want an attorney who understands that and has some compassion for your position.

Has Your Whistleblower Attorney Made It Clear Why You Should Hire Them?

When interviewing attorneys for the job, make sure you ask them plenty of questions and make sure you get clear answers. Find out if they have the time and resources to represent your case efficiently. Ask about their track record with qui tam cases and request some real-life examples.

Question how much documentation they need from you and what their policy is to find more. Ask about retainer fees and contingency fees. Find out if the firm covers the expenses, to be recouped from the reward. If not, what are the expectations for payment? Ask if they will ask for damages including their fees or if the costs will come out of the reward.

You hire your attorneys, and, therefore, they work for you. Don’t be afraid to ask the questions you need to ask to feel confident in your decision. Once you hire your attorneys, trust in their ability to do what you need, unless the evidence shows they cannot. When you can trust your lawyer, much of your stress related to the case will fall away.

If you’re planning a whistleblower case, the attorney you hire is the most important decision you can make. Have questions about what makes for the best whistleblower attorneys? Contact the Bothwell Law Group online today.

What Is Whistleblowing and What Are the Risks?

what is whistleblowing

what is whistleblowingIf you’ve been asking, “ What is whistleblowing? ” here’s the definition straight from Merriam-Webster: An informant who exposes wrongdoing within an organization in the hope of stopping it.

At a high level, this seems straightforward; a moral obligation even. But before you go forward with a qui tam lawsuit (aka- whistleblower lawsuit), it’s a good idea to understand your legal protections, and their limitations.

Anti-Retaliation Protection

Within the False Claims Act is a specific anti-retaliation clause that (in theory) protects potential whistleblowers from employer retaliation “because of lawful acts done by the employee…in furtherance of an action.” This includes protection from being fired, suspended, demoted, or otherwise harassed, and applies whether or not a lawsuit has actually been filed.

However, to avail yourself of this clause, the employee must prove the action taken was a result of an employee participating in an FCA action, that the employer knew about the action, and the employer then discriminated against the employee as a result. If you can prove retaliatory discrimination or other adverse action, your employer is liable for damages. They must also reinstate you, and return your employment conditions to their original state.

Other Items to Consider If You’re a Whistleblower

While legal protection is helpful, there are other ramifications you may want to consider when determining whether or not to bring a qui tam lawsuit.

  1. You can still lose your job. Yes, you are protected by the anti-retaliatory provision. But you’ll have to take that case to court, and win, based on proof. Sometimes employers can successfully fire an employee for an unrelated, but justified cause. It can be as simple as stealing a pen which, in theory, is company property.
  2. You’re blacklisted. While most prospective employers should be thankful you’re honest, it doesn’t always work out that way. Even companies with nothing to hide may be reluctant to hire you, which can make it quite difficult to secure an equal job in the future. If you’re in a well-connected industry, such as defense contracting, this can be especially difficult.
  3. You may face legal consequences. If you were an active participant in the original crime, you may be found liable for any criminal charges filed after the lawsuit. True, you may receive a lighter sentence; but if you think you’re likely to face punishment as a key piece of the fraud being perpetrated you’ll have to factor it in to your decision.
  4. You potentially violate professional and contractual obligations. While the impact isn’t strictly legal, you could still face a civil suit or stiff fines. Non-disclosure and secrecy agreements can be quite binding, especially in industries that rely on confidentiality (i.e. defense contractors).

All of these are potential items to consider when deciding whether or not to file a qui tam lawsuit against a defense contractor or healthcare provider. When weighing the pros and cons, it’s best to engage legal counsel who can talk you through your risk of exposure, impacts, and potential mitigation strategies you have available.

Looking for Experienced Legal Counsel before Making a Decision?

Contact Bothwell Law Group today. Get a better understanding of what whistleblowing is, and identify any potential consequences by calling 770.643.1606.

Qui Tam Statute of Limitations: How Long Do I Have to File?

Qui Tam Statute of Limitations

Qui Tam Statute of LimitationsDo you have grounds for filling a false claim, but are you unsure of the qui tam statute of limitations? Understanding how long you have to file a qui tam lawsuit is important. Lawsuits filed outside of the statute of limitations cannot be pursued by the government and the relator, or the citizen bringing attention to the fraud, cannot be rewarded for exposing the fraudulent activity.

How long do I have to file a False Claims Act lawsuit?

In an effort to encourage citizens to disclose knowledge of fraud in a timely manner, a statute of limitations was built into the False Claims Act. The False Claims Act outlines the statute of limitations for qui tam lawsuits in section 3731(b). This section of the False Claims Act states that a suit can be filed up to 6 years after the occurrence of the fraudulent activity.

How does the Qui Tam statute of limitations apply to the government’s actions?

After outlining the statute of limitations and how it applies to relators of fraud, the False Claims Act also addresses the issue of how long the government has to take action in recovering money lost as the result of fraud. According to section 3731 of the False Claims Act, the United States government can take action up to three years after receiving information concerning the fraud or at the very most 10 years after the fraudulent activity occurred. While there has been some debate concerning whether this portion of the statute of limitations can be applied to relators, the general consensus is that this portion was created to govern the United States government’s actions in qui tam lawsuits.

What about first-to-file?

Outside the qui tam statute of limitations, there is another way the government is encouraging relators to file a qui tam lawsuit in a timely manner. In section 3730(b) of the False Claims Act, the first-to-file statute is outlined. Citizens can only be rewarded for disclosing knowledge of fraud if they are the first person to file information about a specific fraudulent activity. This section of the False Claims Act was created to encourage timely filing of a qui tam lawsuit but it was also created to prevent multiple lawsuits being filed concerning the same fraudulent activity.

Public knowledge of the fraud?

The Qui Tam statute of limitations and the first-to-file rule were created to encourage timely reporting of fraudulent activity. There is one more reason relators should act quickly and file a qui tam lawsuit in a timely manner. Similar to first-to-file, if the fraud is made public before filing, the relator is no longer entitled to compensation for disclosing information regarding the fraud.

At Bothwell Law Group, we focus all of our efforts on lawsuit related to the False Claims Act. Because of this, we are able to act quickly, filing qui tam lawsuits in a timely manner. If you have questions about the qui tam statute of limitations, click to contact the Bothwell Law Group today.

How to File a Whistleblower Claim under IRS Whistleblower Protection Laws

IRS Whistleblower Protection Laws

IRS Whistleblower Protection LawsAlerting the internal revenue service (IRS) with information that you believe a person or business has violated the tax law is provided for under the IRS Whistleblower Protection Laws. The whistleblower has the potential of receiving a hefty reward if the information provided culminates in the IRS collecting the taxes and finds that the information provided “substantially contributed to the collection of tax.” The award is based on a percentage of the amount collected ranging from 15 to 30 percent.

How to file a claim under IRS whistleblower protection laws

There are certain criteria that the alleged IRS taxpayer violator must meet in order for the IRS to accept the whistleblower claim for investigation:

  • The total amount for collections, including unpaid taxes, interest and penalties must exceed $2 million.
  • Individual taxpayers who are reported must have gross earnings in excess of $200,000 for the taxable year that is under investigation.

If you believe the person or company you are reporting meet these criteria, your report must be filed on a specific IRS form and include:

  • As estimate of the amount of taxes you believe is owed.
  • A summary of all the facts upon which you base your claim.
  • An explanation of how you gained your knowledge of the alleged violation.

Your claim must be filed under penalty of perjury.  If the IRS decides to pursue the claim and determines you played any part in the company decision to underpay taxes, you will not receive any reward and may be criminally prosecuted for those actions.

Although the IRS pledges to protect the identity of the whistleblower as much as possible, you may be called to testify in a judicial hearing if  you are deemed to be “an essential witness.” If the IRS determines in cannot proceed without your testimony, it will notify you and give you the option of remaining anonymous and not pursuing the case, thereby giving up any claim to a reward.

After filing the claim, you  will not be privy to any information concerning IRS actions against the taxpayer or any specific information about the status of the case. You will only be told whether the case is open, denied, closed and payable and the amount of the award that you can expect to receive. It may take years for you to collect your reward since the reward is not paid until the entire amount of the taxes, interest and penalties in question have been collected.

The process is complicated and you need the assistance of attorneys who are dedicated to representing whistleblowers. At the Bothwell Law Group, we have the experience you need for filing your claim under the IRS whistleblower protection laws. We  work diligently to pursue your claim and protect your identity. Contact us today.

Pharmaceutical Whistleblower Case: Whistleblower Gets $33 Million

Pharmaceutical Whistleblower Case

Pharmaceutical Whistleblower CaseA federal judge ruled the whistleblower against Endo Pharmaceuticals is entitled to roughly $33.6 million.

Pharmaceutical company Endo Pharmaceuticals was allegedly promoting the drug Lidoderm for off-label uses and agreed to pay $171.9 million in settlement. $140 million of the settlement goes to the government. 24% of the government’s portion is going to the whistleblower – relator Peggy Ryan. The government, however, argued she should only receive 19% of the federal recovery.

The judge, U.S. District Judge Robert F. Kelly, stated “because of Ryan’s “extraordinary” contributions to the nearly decade-long litigation, she was entitled to more.” He also wrote in his memorandum, “An examination of the record exhibits that Ryan provided not only the spark for the investigation, but that she nurtured the flame at the darkest times when the possibility of a favorable outcome seemed most remote.  Throughout the nine-year period from her first qui tam complain in 2005 to the settlement in 20154, Ryan continually provided access behind the corporate walls of Endo. Ryan’s insider status, conferred by her employment with Endo, enabled the government investigatory team to recover evidence which would have otherwise been unobtainable.”

Ryan’s Role in this Qui Tam case

Whistleblower Peggy Ryan filed a qui tam complaint and an investigation into Endo’s alleged fraudulent practices was launched. Over the next year, Ryan wore a wire and recorded over 200 hours of conversation. Thanks to covertly recording the conversations, evidence was gathered of the unlawful marketing of Lidoderm. Kelly stated the recordings gathered by Ryan provided the evidence of Endo’s strategies to market the drug for off-label uses, promote the drug for off-label uses and management instructing sales representatives on how to convince doctors to promote the drug for said off-label purposes.

Kelly also said Ryan was able to record Lidoderm’s project manager saying 97 to 98 percent of Lidoderm’s prescriptions were off-label.

Judge Kelly made it clear that “It is the view of the court that without the assistance of Ryan, the probability of the government recovering any funds for the [False Claims Act] violations would have been slim at best.”

Ryan and the law firm representing her, James, Hoyer, Newcomer & Smiljanich in Tampa, Florida, produced an 18 minute documentary summarizing the case. This video was then distributed to every federal agent and prosecutor involved.

A word from Ryan’s Lawyer

Christopher Casper of James Hoyer said in a statement to The Legal, “It is never easy to be a whistleblower, especially when a case gone on for a decade, but Ms. Ryan has remained dedicated to the cause of exposing fraud against the government on behalf of the American taxpayer. It has been exactly 10 years and 10 days since this case was filed. We hope Judge Kelly’s decision to grant Ms. Ryan close to the maximum percentage for a relator will encourage other individuals with evidence of fraud against the government to come forward. This case demonstrates that the False Claims Act is the most powerful tool the government has in fighting fraud.”