Whistleblower (Qui Tam) Cases
A whistleblower lawsuit is a lawsuit brought against an individual or company accused of defrauding the federal government under the False Claims Act. This act, first signed into law by President Lincoln in 1862, was designed to protect the government from wasting money on excessive charges by private contractors who were supplying the Union Army. The act includes “qui tam” provisions, which allow an individual to sue another individual or company on behalf of the federal government. The phrase derives from the Latin expression “qui tam pro domino rege pro se ipso in hac parte sequitur,” which means “he who sues for the king as well as for himself.”
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The False Claims Act and qui tam provisions provide protection for whistleblowers who take personal and professional risks in accusing their employer of a misdeed. Employees who have evidence that the company they work for is guilty of fraud against the U.S. government should bring that evidence to a qui tam lawyer in order to make sure they get the protection and the rewards they deserve.
History Of The False Claims Act
In its original form, the False Claims Act paid 50 percent of the amount recovered to the individual who filed the lawsuit, known as the relator. In 1943, however, Congress cut back the rewards drastically and limited the types of evidence that could be submitted, making it much more difficult for a whistleblower to win a case. At that time, relators had little motivation to take the risk of blowing the whistle on an employer.
In the 1980s, Congress revisited the False Claims Act and made more favorable changes. At that time, defense contractors were coming under scrutiny for charging exorbitant prices for basic supplies, like the now-famous $435 hammer. In 1986, President Reagan signed several amendments that strengthened the False Claims Act, increasing the damages charged to fraudulent companies as well as the rewards paid to whistleblowers. Since 1986, more than 9,000 qui tam cases have been filed and more than $55 billion has been recovered.
Types of Fraud
Any type of business or organization that works for the federal government in any capacity could potentially become involved in a qui tam case, but defense contractors, health care organizations, and financial institutions account for a large number of cases under the False Claims Act. Defense contractors, for example, have been found guilty of failing to comply with the terms of a contract, substituting lower quality materials, and shifting costs from private to government customers.
In the health care industry, pharmaceutical companies have committed fraud by overcharging for certain medications, paying kickbacks to physicians for prescribing a certain drug, and misreporting data from drug trials on the efficacy of a medication. The Medicare Advantage program has defrauded taxpayers by reporting false (more severe) diagnoses that allow the program to increase its charges.
In the financial industry, there have been cases of insider trading with public pension funds, FHA mortgages obtained through falsified information, and federal bailout funds received through false pretenses. The Securities and Exchange Commission (SEC) has its own whistleblower program, created by the Dodd-Frank Act, which guarantees a reward if the government is able to recover $1 million or more.
These are just a few of the many types of fraud that have been uncovered and punished in a qui tam case. Although not all cases are successful, some have paid very generous rewards to relators.
The first step in accusing a company or an individual of fraud against the U.S. government is bringing the evidence to a whistleblower attorney. The attorney will need to know specific details about how the fraud was carried out, who was involved, and when it took place. The timing of the action is important as there are certain statutes of limitations that may make a lawsuit impossible.
Similarly, if the relator is not able to produce sufficient evidence regarding the nature of the fraud and the individuals involved, the attorney will not recommend bringing the case to trial. The attorney will also want to know who else has information about the fraud in order to ascertain that the client is truly the whistleblower and that the evidence is kept confidential.
The Qui Tam Process
Once the attorney and client have decided to proceed with a case, the next step is to file suit. The process of filing a qui tam lawsuit is somewhat more complex than that of a regular civil case. For one thing, the attorney will file the complaint under seal in federal court. This means that the complaint itself as well as the identity of the whistleblower will be kept secret for a period of time. While the complaint is under seal, the government will begin its investigation based on the evidence presented by the relator’s attorney.
After looking into the case, the government may decide to join the case, or it may decline to do so, in which case, the whistleblower will be free to pursue the case on his or her own, without government resources. Most often, whistleblower cases are resolved through settlement rather than litigation. During the negotiation process, the seal will necessarily be lifted. Relators should be aware that it can take a long time for a case to be resolved, often many years.
Benefits of a Qui Tam Lawsuit
The False Claims Act not only protects whistleblowers, but it also rewards them when funds are successfully recovered. A whistleblower is entitled to receive a percentage, typically between 15 and 30 percent of the settlement or damages in a successful case, in addition to legal fees. Some cases have paid rewards of millions of dollars. Moreover, if the company retaliates by terminating the whistleblower’s employment, for example, the whistleblower can then bring another suit against the company and often recover even more in lost wages and personal damages. Another benefit of bringing a qui tam lawsuit is the opportunity to contribute to the greater good by preventing further fraud against the government and tax payers. Many people opt to make a claim against a corrupt employer out of a sense of moral duty.
Risks of a Qui Tam Case
Although the rewards of a whistleblower lawsuit can be significant, they are not guaranteed. A lawsuit can go on for many years and end up being dismissed. It is hard to invest so much time in a case and have it come to nothing. In other circumstances, while the case may be successful, the reward may not be as great as the relator anticipated. In addition, being known as a whistleblower can make it difficult for a person to find employment in other companies. If you are considering bringing a claim of fraud against your employer, it is a good idea to consult with an attorney who can investigate the merits of your case and advise you about protecting your anonymity for as long as possible.
Tips for Whistleblowers
Blowing the whistle on a corrupt organization can be both financially and emotionally rewarding, but the process is not for the faint-hearted. If you’re planning to file a qui tam lawsuit, consider the following tips for protecting yourself and making a successful case.
- Document everything.
If you suspect that a company or individual is defrauding the U.S. government, it’s important to document every possible piece of evidence. This can include copying files and emails, taking personal notes, and even recording your own conversations. Make sure to keep copies in a secure location outside your workplace.
- Talk to an experienced attorney.
Consult with an attorney as soon as you have reason to suspect fraud. The attorney can help you evaluate the strength of your case and make sure that you proceed safely. It’s very important to work wit
h an attorney who is familiar with qui tam cases and has the resources to proceed with your case.
- Talk to no one else.
When your lawsuit is filed, it will be filed under seal, meaning that your identity is kept confidential. In fact, the company will not even know a complaint has been made. In order to maintain your anonymity and protect the investigation of the case, you should not speak to anyone but your attorney. It is especially important to avoid making any sort of comment about the case on social media, even if you use strict privacy settings.
- Act quickly
Be aware that there are statutes of limitations for qui tam cases. The clock starts ticking as soon as the government has paid out funds, and there is only a limited time in which those funds can be recovered. Another reason to act fast is that someone else in the organization may make the information public, which would put your case at risk.
- Be completely honest
Avoid any temptation to give details that you’re not completely sure of. Even if you feel your case needs to be stronger, providing false information will only lead to your case being dismissed when it is detected.