FALSE CLAIMS ACT RETALIATION AND QUI TAM LITIGATION
Gregory Wilhelm, the former Assistant Attorney General for the State of Florida with experience litigating qui tam and retaliation claims under the False Claims Act is now employed at the new Baybridge Law Firm P.L.L.C., in Gulf Breeze Florida.
WHAT IS QUI TAM LITIGATION?
Qui Tam is shorthand for the Latin phrase “Qui Tam pro domino rege quam pro si ipso in hac parte sequitur,” which means “who sues on behalf of the King, as well as for Himself.” Under the False Claims Act (FCA), a private individual with knowledge of fraud committed against the federal government may sue on behalf of the government to recover losses caused by the fraud.
What incentives are available for qui tam whistleblowers to disclose fraud?
To encourage whistleblowers to come forward and expose fraud on the government, the FCA awards whistleblowers 15% to 30% of the government’s recovery.
What activities are prohibited under the False Claims Act?
The False Claims Act prohibits fraud involving federally funded contracts or programs. Specific examples of activities prohibited under the False Claims Act include:
1. Knowingly presenting or causing to be presented, a false or fraudulent claim for payment or approval by the Government;
2. Knowingly making, using or causing to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government;
3. Conspiring to defraud the Government by getting false or fraudulent claims approved or paid by the Government;
4. Authorizing the making or delivery of a document that certifies the receipt of property used or to be used by the Government and intending to defraud the Government by making or delivering the receipt without completely knowing that the information on the receipt is accurate;
5. Knowingly buying or receiving an obligation or debt from the Government without being able to legally buy or receive that obligation or debt; and
6. Knowingly making, using or causing to be used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit property to the Federal Government.
FALSE CLAIMS ACT
What activities are protected?
Under the FCA, an employee, contractor, or agent engages in protected activity by acting in furtherance of a qui tam action. This includes: (1) investigating an FCA action, (2) initiating an FCA action, (3) testifying for an FCA action, or (4) assisting in an FCA action. Specific examples of protected activity include:
1. Bringing illegal conduct to an employer’s attention;
2. Refusing to participate in a scheme to defraud the government;
3. Reporting to a supervisor that flawed devices were being provided to the military;
4. Reporting internally the existence of fraudulent activity; and
5. Any efforts to stop 1 or more FCA violations.
What must the plaintiff prove to prevail?
To prevail in an FCA retaliation case, the whistleblower must prove the following:
1. The whistleblower was engaged in protected activity; and
2. The employer knew that the whistleblower was engaged in protected activity.
The whistleblower must also file the retaliation claim within 3 years of the date on which the retaliation occurred.
What retaliatory acts are prohibited under the False Claims Act?
The FCA prohibits any action taken by an employer which has a negative effect on the terms, conditions, or privileges of employment. This includes termination, demotion, suspension, harassment and any other act that would dissuade a reasonable person from reporting violations of the FCA, even an act of retaliation against an individual associated with the whistleblower.
What can a prevailing whistleblower recover?
Section 3730 (h) of the FCA provides that prevailing whistleblowers will be made whole, i.e., will be returned to the same position the whistleblower would have been in absent the retaliation. In particular, the FCA authorizes reinstatement or front pay, double back pay, interest on back pay, litigation costs, reasonable attorney fees, and damages for emotional distress.
What Types of Fraud Implicate the False Claims Act?
Fraud against the government can occur in many different industries, including but not limited to the following:
Healthcare and Pharmaceutical Fraud
Finance, Banking and Mortgage Fraud
Defense/Military Contractor/Subcontractor Fraud
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