Aggressive Advocates For Whistleblowers

The Securities and Exchange Commission’s whistleblower program went into effect in August 2011 to encourage the reporting of any securities violation. If you are aware of a publicly traded company that is committing securities fraud such as insider trading, hiding negative information from the public or filing false statements, you may qualify for an award if you report information to the SEC that leads to a recovery of more than one million dollars from the offending company. For more information about filing an SEC whistleblower claim, click here.

An individual files a False Claims Act case to return funds to the government. The whistleblower first notifies the government about the fraud and discloses that they are going to file a False Claims Act case. After that, the individual files the court case and serves it on the United States and any states that may be involved.

After a period of investigation, the government has a choice to intervene or decline. If the government intervenes, it will take the lead on settlement negotiations or take the case to trial. If the government declines, the individual who brought the case may choose to move forward on their own. If the case moves forward, the government always has the option to change its mind and intervene at a later date.

It is important to remember that in any False Claims Act case, the United States is the “real party in interest,” which means that the case is really about the government’s interests, not the interests of the person who files the suit. The whole purpose of the matter is to return money fraudulently obtained from the government.

People often refer to False Claims Act cases as “qui tam” cases. Qui tam is short for the Latin phrase, “qui tam pro domino rege quam pro se ipso in hac parte sequit,” which roughly translates as “he who brings an action for the king as well as for himself.” The phrase means that an individual brings a qui tam case on behalf of the government.

Usually, the person who brings a lawsuit is called a plaintiff. In a qui tam case, this person is called a relator.

It is essential to file a case as soon as possible after you have learned about fraud. The False Claims Act says that whistleblower must file a lawsuit within:

• Six years from the date of the violation
• Three years from the date the government knew or should have known about the fraud but in no event more than 10 years from the time of the violation, whichever is the latest.

For example, if a fraudulent action occurred four years ago, a suit can still be filed. Also, if the activity occurred seven years ago, but the government does not and could not have known about it until now, then the statute of limitations has not expired, and you can file a lawsuit.

However, if the action occurred 11 years ago, the statute of limitations has expired, and it is too late to file a suit. Also, if the activity occurred eight years ago, but the government knew or should have known about it five years ago, then the statute of limitations has run, and a suit is prohibited.

Not right away, but eventually. All qui tam cases are filed “under seal,” which means that the defendant company does not get served (given a copy of the lawsuit), and the lawsuit is not made public. The case is required by law to stay under seal for at least 60 days while the government investigates, but often the government will make requests to the court for the seal to be extended for months or even years while the investigation continues.

The court will only lift the seal and make the lawsuit public once the investigation is complete, and the government has decided whether or not to move forward. With minimal exceptions, this is when the court reveals the relator’s name.

No, the seal applies to you too! Only the relator, the relator’s counsel, the court and the government may know about the case while the seal is in place. A court may dismiss a case if you violate this rule, so it is vital to follow it carefully. As a general rule, you should not discuss a False Claims Act lawsuit with anyone other than your lawyers.

Yes, the False Claims Act has special provisions to protect whistleblowers against retaliation. An employee may bring a lawsuit against an employer if the employee is discharged, demoted, suspended, threatened, harassed or discriminated against because of any lawful acts done by the employee in furtherance of a False Claims Act case. The employee may seek reinstatement, two times the amount of back pay plus interest and special damages, which include attorney’s fees.

However, this is an after-the-fact provision. The law does not force employers to rehire employees during the case. The employee only receives the law’s protection if they show that the employer retaliated because of the qui tam action

A whistleblower is an employee or contractor who discloses fraud, unlawful acts, or certain other types of misconduct to their employer or the relevant regulatory agency. Federal and state laws vary, but in general, if you are aware that your employer or even a competitor is doing illegal things, you should contact an attorney immediately and ask for guidance on how to properly and effectively blow the whistle to ensure you receive the best protection available in your jurisdiction.

The False Claims Act includes a provision that is commonly called the “first-to-file bar.” That means that only the first person to file a case alleging a specific type of fraud can maintain the matter. There is an extensive body of law discussing how similar two cases must be for the second one to be barred, so it is essential to talk to a lawyer about any other cases that might exist.

Because of this part of the statute, filing a qui tam case can be a race to the courthouse. For this reason, it is crucial to get a case on file as soon as possible.

There is a provision in the False Claims Act called the “public disclosure bar,” which prohibits suits based on information that is already in the public domain and available to the government. The purpose is to discourage “parasitic” whistleblowers who only know about information secondhand and do not have unique, personal knowledge to help the government in a recovery.

Congress amended this part of the statute to bar any case wherein the “allegations or transactions” were disclosed in a federal criminal, civil or administrative hearing in which the government was a party; in a congressional, GAO or another federal report, hearing, audit or investigation; or in the news media.

The exception to this rule is if the relator is an original source of the information. An “original source” is someone who voluntarily disclosed the information to the government before the public disclosure or who has “knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions.”

Like the first-to-file bar, this requires a very case-specific analysis, so it’s important to discuss this with a lawyer.

Typically, the government will assign each to an assistant United States attorney (AUSA) in the jurisdiction where you filed and an attorney or agent from the United States Department of Justice in Washington, D.C. Representatives from various governmental agencies may also be involved, depending on the nature of the allegations. For example, the Department of Health and Human Services may be included in Medicare or Medicaid fraud cases, while the Department of Defense may be involved in defense contracting fraud.

Once you file a case, the government determines the investigation’s course. The government may ask the relator for help as the case progresses, but all strategic decision-making is up to the government agents assigned to the case. The relator’s role can vary greatly depending on the relator’s employment status and the investigation’s depth. For example, the government may ask a relator to provide a potential witness list, to analyze documents, or even to wear a wire to record conversations.

The False Claims Act provides for a civil penalty of three times the total amount of damages suffered by the government plus hefty statutory fines for each and every false claim. Every individual statement, bill or record sent to the government in violation of the False Claims Act counts as a separate false claim.

A company may also be liable for criminal penalties against the company or against individuals who orchestrated and directed the fraud. Criminal penalties can be in the form of fines, asset forfeiture or even jail time.

In the most severe cases, a company may face prohibition from future government contracting. For example, the government may exclude a medical provider from participating in the Medicare and Medicaid programs or disbar a defense contractor. The duration or permanency of these sanctions depends on the nature and severity of the fraud.

If a defendant settles with the government, the penalties are often negotiated downward in exchange for the company’s cooperation. Usually, a settling company will also be required to enter into a corporate integrity agreement to allow for government oversight to ensure compliance in the future.

If a case is settled or successfully litigated, the relator who initiated the lawsuit is entitled to a “relator’s share,” which is a portion of the government’s recovery. The relator’s share amount depends on the involvement of the relator, the government and the ultimate resolution of the case.

If the government intervenes, the relator is entitled to between 15% and 25% of the proceeds. If the government declines, the law increases the relator’s share to between 25% to 30% of the government’s recovery.

However, the court may significantly reduce or eliminate the relator’s share if the relator was an architect of the fraud or substantially participated in it. If the relator is ultimately convicted of criminal conduct related to the allegations, they must be dismissed from the case and cannot share in the proceeds at all.

Importantly, a relator will not collect any portion of a relator’s share until the government resolves the case and receives its funds. There is no provision for payment to the relator while the case is ongoing.

Importantly, a relator will not collect any portion of a relator’s share until the case is finally resolved and the government has received its funds. There is no provision for payment to the relator while the case is ongoing.

While federal and state laws vary by jurisdiction, most whistleblower cases require that you prove that you disclosed what you reasonably believed was fraud or unlawful conduct to your employer (and in some cases, the laws protect independent contractors) and that you employer retaliated against you in response (such as demoting you, removing your job duties or terminating you). If you feel you have a case, we suggest that you call a lawyer immediately.

A whistleblower discloses fraud or illegal conduct through proper channels while following the laws in doing so. Whistleblowers are entitled to many protections provided by law. Informants, or “leakers,” often publish information that is confidential without permission and without going through proper channels – you could classify people such as Edward Snowden and Julian Assange as “leakers.” Individuals like Snowden and Assange do not have the same protections as whistleblower because they violated numerous criminal statues and did not follow proper channels in disclosing the information.

You should disclose fraud or unlawful act through the proper channels and then contact a lawyer. It is also important to write down everything you’ve observed and gather evidence of the fraud to the extent you’re legally able to obtain it. Contemporaneous notes can become crucial to making your case down the road.

Our firm ensures the accuracy and viability of a case before filing by gathering the facts. We also know that we need to get your claim filed as quickly as possible, so you can expect things to move rather quickly. You may meet with your attorneys and our investigators several times to review documents and evidence to create an in-depth timeline of events and to make sure that there are no stones left unturned.

Once we file your case, you will begin to prepare for your first meeting with the government, which often takes place within the first few months. At that meeting, the government will want to know everything you know about the case, so you must be prepared. We will meet in advance to ensure you are completely ready.

After the relator’s meeting, you may feel like the case is slowing down. The government takes over the investigation to determine the accuracy of your allegations and whether they want to proceed with the matter. This period can be long or short and can involve a lot of communication with the government or almost none at all. The most important thing you can do is to be patient. Our firm will work to ensure the case moves as quickly as possible and will keep you notified each step of the way.

After the relator’s meeting, you may feel like the case is slowing down. In reality, the baton has been passed to the government, and it will be conducting an investigation to determine the accuracy of your allegations and whether it wants to proceed with the case. This period of time can be long or short and can involve a lot of communication with the government or almost none at all. The most important thing you can do is to be patient. Hoyer Law Group, PLLC, will work to ensure the case moves as quickly as possible and will keep you notified each step of the way.

The length of a False Claims Act case can vary greatly. Although there is a recent push by the Department of Justice to move cases along more quickly, a relator should expect their case to last for several years. A lawsuit typically lasts years and, in some cases, more than a decade depending on the allegation’s complexity, the company’s size and the government’s motivation. There is simply no way to predict this at the outset.

There are often headlines in the news stating that someone has been granted “whistleblower status.” Yet, in the law, there’s really no such thing as “whistleblower status.” Rather, whistleblower protection laws typically work by declaring that certain types of conduct is protected, and that an employer cannot take into consideration the protected conduct when deciding whether to take an adverse action against an employee. There is no mechanism that grants “whistleblower status” to a person, or that completely insulates a whistleblower from other repercussions from unprotected conduct.

In other words, if an employee discloses wrongdoing, the employer cannot consider the employee’s disclosure when deciding whether to discipline the employee. However, if the employee did other things that offended the employer that aren’t protected, the employer may still use the unprotected conduct as a reason to punish the employee. In sum, there is no such thing as “whistleblower status” for a whistleblower. Rather, certain acts or conduct may be protected.