Frequently Asked QUI TAM Questions
Q: What is prohibited by the False Claims Act?
A: The False Claims Act prohibits:
- Knowingly submitting or causing the submission of false or fraudulent claims for payment by the Government;
- Knowingly making or causing a false record or statement to get a false or fraudulent claim paid or approved by the Government;
- Knowingly making or causing a false record or statement to conceal, avoid or decrease an obligation to pay the Government; and
- Conspiring to defraud the Government by getting a false or fraudulent claim allowed or paid.
What is a defendant’s potential liability under the False Claims Act?
A: Three times the Government’s damages, plus civil penalties of $5500-$11,000 per false or fraudulent claim.
Q: What can a whistleblower receive for bringing a qui tam case under the False Claims Act?
A: If the Government intervenes in the case and takes it over, the whistleblower (who is also known as the relator) will receive between 15 and 25 percent of the amount recovered by the Government from a settlement or verdict. If the Government chooses not to intervene in the case, the successful relator’s percentage rises to between 25 and 30 percent. The precise percentage depends on the relator’s contribution to the case.
Q: How long do I have to file a False Claims Act case?
A: Under the False Claims Act, a case must be filed within the later of two time periods:
- Six years from the violation; or
- Three years after the Government knew or should have known of the violation, but in no event more than 10 years after the violation.
Q: If I file a False Claims Act case, will my identity be kept secret from the defendant?
A: At first, yes. But not forever. False Claims Act cases are filed under seal and remain under seal until the Government decides whether or not to intervene in the case and take it over. While the case is under seal neither the defendant nor anyone else outside the Government will know you have filed your case. On the other hand, once the Government decides either to intervene in the case or not to intervene in the case, then the court will order the case unsealed and the defendant will learn your identity.
Q: For how long are False Claims Act cases usually sealed?
A: That is hard to answer because it depends in part on the particular judge assigned to the case. Cases are sealed for an initial 60 day period under the terms of the False Claims Act. When that 60 day period is almost over, the Department of Justice will ask the court for additional time to investigate the case while it is still sealed, usually six months. Some cases remain sealed for many years while the Department of Justice continues to investigate. In other cases, courts may decide to refuse further extensions of the seal after 12 or 18 months.
Q: Do whistleblowers who are current employees have any legal protection against being fired for bringing a False Claims Act case against their employer?
A: Yes. Section 3730(h) of the False Claims Act provides that an employee who is discharged, demoted, suspended, or otherwise discriminated against by his or her employer because of lawful acts done by the employee in furtherance of an action under the False Claims Act are entitled to reinstatement, twice the amount of back pay, interest, and attorneys fees.
Q: If the Department of Justice declines to intervene in my case, can I continue to litigate the case?
A: Yes. However, your relator’s share percentage only rises from 15-25 percent to 25-30 percent. Even after deciding not to intervene in the case, the Department of Justice retains the right to veto a proposed settlement.
Q: Is proof of a defendant’s willfulness required to establish liability under the False Claims Act?
A: No. Willfulness (otherwise known as criminal intent or specific intent to defraud) is not required because the False Claims Act penalizes “knowing” violations. The FCA defines “knowingly” as including actual knowledge; deliberate ignorance; and reckless disregard for the truth.
Q: Is proof beyond a reasonable doubt required to establish liability under the False Claims Act?
A: No. Proof beyond a reasonable doubt is the Government’s burden of proof in criminal prosecutions. False Claims Act cases are civil cases and the burden of proof is the more relaxed “more likely than not” or 51 percent standard.
Q: When is a whistleblower paid after filing a False Claims Act case?
A: After the Government collects from a settlement or a judgment.
Q: What happens if more than one whisteblower file False Claims Act cases based on the same or very similar allegations?
A: The complaint of any whistleblower who files an FCA complaint after the first whistleblower based on the same or very similar allegations is subject to dismissal under the False Claims Act’s first-to-file bar. This means it is vitally important not to delay filing your False Claims Act case or you may lose a “race to the courthouse.”
Q: Can only a current or former employee “insider” file a False Claims Act case?
A: No. Non-insiders such as competitors or patients can file False Claims Act cases.
Q: Can False Claims Act cases be based upon allegations or transactions which have been publicly disclosed in media reports, Congressional hearings, administrative reports, or depositions in civil litigation that have not been sealed?
A: Not unless the whistleblower bringing the case is an “original source.” The False Claims Act prohibits qui tam actions if they are “based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the person bringing the action is an original source of the information.” An “original source” under the False Claims Act is defined as “an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an [FCA] action.”