False Claims Act

The False Claims Act is the government’s primary fraud fighting tool. It empowers and rewards whistleblowers who file lawsuits on behalf of the government to recover taxpayer dollars that were lost due to fraud. These types of claims target, for example:
 

• Medical providers who falsely billed government funded healthcare programs like Medicare and Medicaid, including billing for services that were not provided, medically unnecessary services, or services that resulted from illegal kickbacks
• Drug and medical device makers who falsely marketed products paid for by government funded healthcare programs or who paid kickbacks
• Government contractors who falsely billed the government for faulty or nonexistent goods or work, or who engaged in bid rigging, or who violated other promises such as agreements to pay prevailing wages or hire disabled workers
• Contractors who violated environmental rules while carrying out their government contracts
• Financial firms that misrepresented the quality and value of their financial products to get government guarantees
• Big banks and others who misinformed the government about payments they owe to the government
• Importers who falsifed the nature of their goods to avoid customs duties

Some states allow qui tam cases about tax violations. Please see our description of tax whistleblower programs for a discussion of those claims.

Kirby McInerney’s False Claims Act Practice

Kirby McInerney fights for whistleblowers with knowledge of frauds committed against the government. We have extensive experience in these cases: we have partnered with government investigators on cases where the government has intervened, and we have successfully pursued strong cases where the government has declined them. Our team brings together extensive government and anti-fraud litigation experience to represent whistleblowers in recovering monies ripped off from the federal, state and local governments.
 

About the False Claims Act

WHO CAN BE A FALSE CLAIMS ACT WHISTLEBLOWER?

The key to being a whistleblower is having non-public information about fraud committed against the government. There are few limitations on who can be a whistleblower, though persons who come forward with high quality, timely information are more likely to receive an award at the end of the case. You should consult with experienced whistleblower counsel to examine whether you have a whistleblower claim and what it will mean to you to be a whistleblower.

WHISTLEBLOWER AWARDS UNDER THE FALSE CLAIMS ACT

A successful whistleblower generally is entitled to an award of between 15% and 30% of the government’s monetary recovery in a False Claims Act case. Where the government intervenes in (or, takes over) the case, the awards are between 15% and 25%. Where the government declines the case and the whistleblower continues with it and achieves a recovery, the awards are between 25% and 30%. The percentages differ under some state False Claims Acts.

HOW TO BRING A FALSE CLAIMS ACT CASE

A False Claims Act case begins with the filing of a lawsuit on behalf of the government. Unlike a traditional lawsuit, the complaint is not served upon the defendant, but upon the government, and it is initially kept confidential. The government can then investigate the claims and decide whether to take over the claims or decline them. At the start of the case, the whistleblower must also provide the government investigators with any evidence he or she has related to the claims. Particularly, where a whistleblower has substantial information about the inner workings of the defendant, he or she can provide invaluable assistance to the government in pursuing the claims.

HOW TO PROVE A FALSE CLAIMS ACT VIOLATION

Most False Claims Act violations fit within two general categories that differ based on the direction in which money flows. “Direct false claims” involve false claims that were submitted to the government to get the government to pay for items or services. “Reverse false claims” involve payments required to be made to the government.

Proving a direct false claim violation typically requires demonstrating that a claim was made for payment by the government (such as by an invoice to a government agency), the claim was knowingly false, and the falsity was material to the government.

Proving a reverse false claim violation typically requires demonstrating that the defendant made records or statements that were knowingly false and were material to an obligation to pay money or property to the government.

WHISTLEBLOWER INVOLVEMENT IN THE GOVERNMENT'S INVESTIGATION

In some cases, whistleblowers can be extensively involved in helping the government pursue the case. The amount of involvement will vary case by case. Typically, government investigators will interview the whistleblower to ask about the facts he or she knows and to assess credibility. Often, the whistleblower and counsel can partner with the investigators to help pursue the investigation. Kirby McInerney’s approach is to actively maintain contact with the government and help multiply the government's resources to pursue the cases.

WHISTLEBLOWER ANONYMITY

Whistleblowers often wish to remain anonymous. Under the False Claims Act, while the whistleblower can remain anonymous in the initial stages of a case, while the case is under seal, there is no guaranty that he or she will remain anonymous in the long term. You should discuss with experienced counsel when and how your identity might be disclosed and how that might affect you.

ANTI-RETALIATION PROVISIONS FOR FALSE CLAIMS ACT WHISTLEBLOWERS

The False Claims Act provides for protection against employer retaliation, such as discharge, demotion, discipline, harassment, or firing. A whistleblower who has been retaliated against for trying to stop practices that defraud the government can bring a claim to be made whole, including reinstatement, double back pay and other damages.

THE DIFFERENCE BETWEEN THE FEDERAL AND STATE FALSE CLAIMS ACTS

In addition to the federal False Claims Act, most states and some large cities have their own False Claims Acts. The federal Act can be invoked to recover monies lost by the federal government, while the state and local Acts relate to monies lost by the state or local governments. In some cases, such as those involving the Medicaid program, which is jointly funded by the federal and state governments, whistleblowers typically bring claims under both the federal and state False Claims Acts.

Contact Kirby McInerney

If you are aware of frauds committed against the government and would like to discuss them with a member of Kirby McInerney’s False Claims Act Whistleblower team, please contact us at our dedicated whistleblower line, 212-699-1160, or by filling out this form.