Whistleblower & Qui Tam Lawsuits

Corporations and individuals who defraud the federal government out of money can be held accountable under the United States False Claims Act.

Businesses being held liable include government contractors and subcontractors, state and local government agencies and officials, public and private universities, and members of the healthcare industry.

Whistleblowers most often are current or former employees of the defrauding company.

The following are a small example of the types of fraud that qualify as a whistleblower or qui tam action:

1. Mischarging or overcharging for goods or services, such as Medicare and Medicaid.
2. Providing the government with defective products that were falsely certified, such as military contractors.
3. Receiving payment for services never provided or by providing improper price data.
4. Holding government property for fraudulent purposes.
5. Avoiding payment of a debt to the government because of illegal reasons.
6. Having any false claim paid by the government.

Under the qui tam portion of the False Claims Act, whistleblowers are entitled to receive up to 30% of the amount of money the government recovers from companies and individuals who defraud the United States.

The percentage depends upon factors such as the type of evidence the whistleblower discloses, and the role the whistleblower plays in the prosecution of the case. Whistleblowers generally recover between 17% to 20%.

A very important exception occurs if the whistleblower participated in the fraud. If this has happened, the amount awarded can be a very small percentage. In fact, if the whistleblower is convicted of criminal conduct in relation to the fraud, he likely will receive nothing.

In 2015, the federal government was able to recoup more than $3.5 billion dollars from corporations in cases brought under the False Claims Act. In 2016, that number rose to $4.7 billion dollars. Most of this money would have never been recovered had it not been for whistleblowers coming forward to expose the conduct of these corporations.

In 1863, at the height of the Civil War, deceptive military contractors were defrauding the Union Army out of hundreds of thousands of dollars by supplying troops with defective products and faulty war equipment. Illegal price gouging was a common practice.

In response, Abraham Lincoln enacted the United States False Claims Act (31 U.S. Code § 3729), which included a provision commonly referenced as the Qui Tam Act that permits private citizens to be paid on a portion of the recovery the government receives against the company or persons committing the fraud (31 U.S. Code § 3729).

When first enacted, the law was rarely taken advantage of because of tough restrictions and rulings that made qui tam almost impossible to enforce. Whistleblowers also had to cover all the costs of filing a lawsuit and the government could take over the suit at any time.

During the 1980s, government fraud was at a peak. As the United States entered an intense arms race with the former Soviet Union, defense contracts were signed at an all-time high. Unfortunately, many of these contracts involved fraudulent deals that cost the US millions of dollars.

As a result, in 1986, Congress amended the False Claims Act in order to make it easier for whistleblowers to file claims against fraudulent corporations and individuals, and raised the amount of potential compensation the whistleblower could receive to 30%.

Federal law protects whistleblowers from retaliation after reporting or pursuing a qui tam action. The law provides that individuals can seek recovery if they are “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment.”

Damages can include being rehired or promoted back to the previous position, two times lost back pay, attorneys fees and costs, and other potential compensation. The lawsuit must be brought within three years after the retaliation occurs or the case is barred by the statute of limitations.

The first step is the Relator (the whistleblower) should set a free and confidential meeting with an attorney who specializes in qui tam litigation, and determine: (i) whether a potential case exists; (ii) whether the whistleblower will face any potential civil or criminal liability by coming forward; (iii) how much the whistleblower can expect to recover in compensation; and (iv) how long the process will likely take to resolve.

The second step is for the whistleblower, through an attorney, to file a legal pleading in federal court that includes the evidence he/she has to support fraud has been committed against the government. The document and evidence are filed under seal, which means no one other than the judge and government has access to it.

The government has a minimum of 60 days to review the information and decide whether it wishes to pursue the action. If the government does not wish to bring the claim, the Relator still has the option of moving forward.

GlaxoSmithKline to Plead Guilty and Pay $3 Billion to Resolve Fraud Allegations and Failure to Report Safety Data:

“Global health care giant GlaxoSmithKline LLC agreed to plead guilty and to pay $3 billion to resolve its criminal and civil liability arising from the company’s unlawful promotion of certain prescription drugs, its failure to report certain safety data, and its civil liability for alleged false price reporting practices.” To read more, click Dept. of Justice GlaxoSmithKline

Johnson & Johnson to Pay More Than $2.2 Billion to Resolve Criminal and Civil Investigations:

“Global health care giant Johnson & Johnson and its subsidiaries will pay more than $2.2 billion to resolve criminal and civil liability arising from allegations relating to the prescription drugs Risperdal, Invega and Natrecor, including promotion for uses not approved as safe and effective by the Food and Drug Administration and payment of kickbacks to physicians and to the nation’s largest long-term care pharmacy provider.” To read more, click Dept. of Justice Johnson & Johnson

Justice Department Announces Largest Health Care Fraud Settlement in Its History:

“American pharmaceutical giant Pfizer Inc. and its subsidiary Pharmacia & Upjohn Company Inc. have agreed to pay $2.3 billion, the largest health care fraud settlement in the history of the Department of Justice, to resolve criminal and civil liability arising from the illegal promotion of certain pharmaceutical products.” To read more, click Dept. of Justice Pfizer

Bank of America to Pay $16.65 Billion in Historic Justice Department Settlement for Financial Fraud Leading up to and During the Financial Crisis:

“The Department of Justice has reached a $16.65 billion settlement with Bank of America Corporation – the largest civil settlement with a single entity in American history ­— to resolve federal and state claims against Bank of America and its former and current subsidiaries, including Countrywide Financial Corporation and Merrill Lynch.” To read more, click Dept. of Justice Bank of America

JPMorgan Chase to Pay $614 Million for Submitting False Claims for FHA-insured and VA-guaranteed Mortgage Loans:

“The Department of Justice today announced that JPMorgan Chase will pay $614 million for violating the False Claims Act by knowingly originating and underwriting non-compliant mortgage loans submitted for insurance coverage and guarantees by the Department of Housing and Urban Development’s Federal Housing Administration and the Department of Veterans Affairs.” To read more, click Dept. of Justice JPMorgan