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Frequently Asked QUI TAM Questions

Q: What is prohibited by the False Claims Act?
The False Claims Act prohibits:

  1. Knowingly submitting or causing the submission of false or fraudulent claims for payment by the Government;
  2. Knowingly making or causing a false record or statement to get a false or fraudulent claim paid or approved by the Government;
  3. Knowingly making or causing a false record or statement to conceal, avoid or decrease an obligation to pay the Government; and
  4. Conspiring to defraud the Government by getting a false or fraudulent claim allowed or paid.

Q: What is a defendant's potential liability under the False Claims Act?
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?
Under the False Claims Act, a case must be filed within the later of two time periods:

  1. Six years from the violation; or
  2. 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?
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?
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?
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?
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?
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."

Criminal Defense Questions

I’m being investigated for a crime. What should I do?
The first stage of the criminal process is the investigation. In many cases, the police do not witness crimes first-hand, and make arrests and a charging decision only after a lengthy investigation. This time is usually your best chance to forestall prosecution. If you suspect or are aware that you are being investigated for a crime, you should contact an attorney as soon as possible to discuss a strategy that could prevent charges being filed and your subsequent arrest.

I’ve been arrested. What happens next?
To someone who is new to the system, the criminal process can be incredibly confusing. Do not let the system overwhelm you. Make sure you understand what is happening, and make sure your criminal defense attorney keeps you informed. The basic elements of the court process include:

1. Charges and Bail
When the police believe they have enough evidence, they make an arrest, go through their booking process, and the prosecutor makes a charging decision. Understand that you have certain constitutional rights at all times that must be protected. These include:

  • The right to have an attorney
  • The right to remain silent
  • The right to a presumption of innocence
  • The right to trial

Make sure you protect these rights at the earliest possible stage in the process.

If you have been arrested, you will likely have the opportunity to make bail by posting money or a bond as a surety for your future appearance in court. It is very important that before you, your family or friends post any money or bond, you contact an attorney to discuss your options.

2. Arraignment
After you are charged with a serious crime such as white collar crime, drug offense, DUI-manslaughter, sex offense, or the like, you will be required to go before a judge for your arraignment. The arraignment is the first formal court appearance and is where you will be advised of the charges and the potential penalties associated with the charges. During this proceeding, you should enter a plea of "not guilty" and request some time to consult with an attorney.

3. Discovery
After your arraignment, your attorney will file a motion seeking a judge to enter a court order requiring the government to provide your attorney with copies of any and all police reports, statements from any alleged victims and witnesses, and any physical evidence that the government intends to use against you. In the event that the government fails or refuses to provide such evidence, your attorney will be required to file a motion to compel the government to produce certain items to which you are entitled.

4. Preliminary Hearing
The preliminary hearing is the stage at which your attorney can require the government to provide a preview of the evidence that it intends to use against you. During this hearing your attorney may seek to cross-examine the governments witnesses in order to determine any initial weakness in the government's case. This is an important hearing, and a crucial time to be aggressive and tactical.

5 Plea Bargaining
Sometimes, the best outcome is a plea bargain. Plea bargaining involves pleading guilty to a charge in exchange for the prosecutor dropping a more serious charge. There are situations when a trial is the best option but sometimes, the most realistic thing to do is plea bargain.

6. Pre-Trial Motion
When a case does not plead out, the process moves to trial. Before the trial happens, an aggressive criminal defense lawyer makes several pre-trial motions to the court to attempt to exclude evidence.

7. The Trial
The trial is the stage in the process everyone knows about. It is important to choose an attorney who has experience trying cases, so he or she can make the right tactical moves before the trial. At trial, that experience is even more important. Your attorney must understand how to present your case and persuade a jury. This is the essence of what a good criminal defense attorney does.

8. Sentencing / Consequences
Sometimes, despite an attorney's best efforts, charges can result in convictions. Your attorney's job is not done, however. Your attorney can argue for a sentence that is substantially lower than that for which the prosecution is asking. This can include a shorter jail term, a shorter probation, loss of fewer privileges such as driving, and a smaller fine.

9. Appeals
Even after trial and sentencing, your attorney's job may not be done. If you lose at trial, you have the right to appeal. Appeals are not routinely successful. When they are successful, however, you may be entitled to a new trial, or you may be set free.

10. Expungement
Finally, when all of your appeals are exhausted, and you have been released, you can think about getting your conviction expunged. There are specific and narrow grounds for expungement, and you should speak to your attorney to see if you qualify.

Civil Litigation Questions

What is a personal injury claim?
A person who has been injured through another person’s negligence, or failure to use ordinary care, has a right to sue for damages for his or her loss. Personal injury is a catch all term for a wide variety of civil litigation law, including premises liability, product liability and general negligence.

What is a wrongful death claim?
A wrongful death claim is a claim filed by the survivors of someone who has died because of someone else’s negligence.

Who has the right to bring a wrongful death claim?
Generally, parents, spouses and children are eligible to file a claim as defined by Florida statute, although minors may need an adult guardian to bring a lawsuit. In some cases, other family members or legal dependents may also have the right to file a wrongful death claim.

Can I receive compensation for my emotional distress following the wrongful death of a relative?
Unfortunately, the law in Florida does not permit a person to recover for the emotional injury suffered from the death of a loved one, except in special situations in which a family member witnesses the serious injury or death of a loved one. In such cases, the family member who was within the "zone of danger" at the time of the accident may be able to recover damages for emotional distress. There can, however, be recovery for the pain and suffering the deceased endured before his or her death, as well as damages for economic loss. Recovery for "economic" losses is not limited to lost earnings. For example, loss of parental guidance and other services that had been provided by the decedent have an "economic" value that is compensable.

I was injured on someone else’s property. Is there anything I can do?
Property owners, including governmental entities such as the city and state, are responsible for injuries that occur as a result of a dangerous or hazardous condition on their property, which the owner either knew about or should have known about. The hazard may be obvious (such as ice on steps) or hidden (such as a hole in a lawn that is partially covered by grass). In some instances it may not be apparent, as in flooring that appears normal but is slippery. The dangerous condition could be permanent, such as broken concrete with a change in elevation, or temporary, such as a liquid spill in a supermarket aisle.

In certain cases, a property owner has been held liable for inadequate security where a person has been injured or killed by a criminal act on the property. In general, an owner will be considered to have knowledge of a dangerous or hazardous condition if it is permanent in nature, because the owner knew, or should have known, about the condition before the incident occurs.

In the case of temporary conditions (like a liquid spill), the length of time that the condition existed before the incident occurred has legal significance. If the spill occurred just before the incident, then the property owner may not be liable for injury, because the owner could not have known about the spill (and would not have been able to do anything about it) before the injury occurred. If, however, the spill was present for some period of time before the incident, or occurred in an area subject to liquid spills, or is a recurring event in the area, then the owner may be liable, even if the owner did not know about the spill before it occurred.

What defenses can I expect will be raised against my claim of injury on someone else's property?
One of the most common defenses is to deny the existence of any dangerous condition on the premises or to deny having timely knowledge of its existence. For example, a defendant may argue as follows: There was no liquid on the floor in aisle five, and even if there were liquid on the floor, we did not know about it in time to take any action. Or the defendant may argue that the floor is specially designed to be slip resistant, even when wet. Another common defense is to argue that you were careless or negligent in failing to observe the dangerous condition (the spill, the loose carpet, the step down, for example) and as a result, should either have all compensation denied or substantially reduced.

What is product liability?
Product liability is a legal term that holds the seller of a defective product responsible for any injury that results to a buyer, user, or in some cases, an innocent bystander. Defendants in product liability cases may include manufacturers, distributors, and retailers.

How do I know if a product is defective?
Sometimes, common sense will tell you that a product has failed to perform because of a defect, but more often than not, you won’t know. Product liability is a highly technical area of the law, and cases virtually always require the input and advice of experts. Under Florida law, there are three different types of product liability cases: manufacturing defects, design defects and duty to warn. Manufacturing defects typically result from some mistake in the manufacturing process, improper workmanship or the use of defective materials. Design defects occur when a product shares a design feature that is defective and unreasonably dangerous. Along with its responsibility to design and construct safe products, a manufacturer also has a duty to warn consumers of unsafe or dangerous features of its products.

What if I no longer have the equipment or device? Do I still have a case?
Yes. Although preserving the product in the same condition it was in at the time of the injury is important, not having the product does not necessarily prevent you from making a claim.

What if the equipment or device belongs to my employer or a friend?
It is very important that you contact an attorney as soon as possible, so he or she can inform whomever has possession of the product not to alter or destroy it.

What is medical malpractice?
Medical malpractice is negligence committed by a professional health care provider - a doctor, nurse, dentist, hospital or hospital worker - whose performance fails to meet the standard of care expected of those with similar training and experience, resulting in harm to a patient. The profession itself sets the standard for malpractice by its own custom and practice.

Do I need a lawyer to pursue a medical malpractice case?
Yes. Medical malpractice cases are very complex and difficult to pursue, and can be quite expensive to litigate. Our firm will obtain all of the proper medical records, laboratory results, pathology reports and all other data resulting from testing that may be relevant to your case.

What sort of damages can be recovered from a medical malpractice lawsuit?
Medical expenses for treating the injuries caused by the malpractice; damages for pain and suffering; disfigurement and disability damages; lost wages and ability to earn wages in the future. In certain circumstances, spouses, children and parents of negligently injured people may recover damages for the loss of the love, care, affection, companionship and other pleasures of the family relationship lost due to malpractice.

Who will receive money after a successful lawsuit for a birth injury?
If a living child suffers harm due to an avoidable birth injury, damages awarded as part of a successful lawsuit will typically go to the child, sometimes in the form of a legal trust.

What if my insurance company or Medicare/Medicaid paid for the treatment that I believe was malpractice - can I make a claim even though no money came from my pocket?
Absolutely. It makes no difference who paid for the medical expenses. Health care providers are required by law to render care and treatment based on the acceptable standard of care.

Complex Business Litigation Questions

What types of business disputes does the firm handle?
We handle every variety of business litigation, including trade secrets, class and derivative actions, RICO, director and officer liability, lender liability, construction, commercial lease disputes and other real estate-related matters, trade libel, tortuous interference, franchise and business opportunities, contracts, fraud and other business torts.

My company has been defrauded, but I can’t afford the costs associated with a lengthy litigation. Does the firm offer alternative billing arrangements?
Yes. In many cases, we can offer contingency fee and mixed fee arrangements for our business clients. We treat all of our cases with the same level of commitment and unlimited dedication of resources, regardless of whether they are for business or individual clients.

QUI TAM - Whistle Blower Questions

What is Qui Tam?
Qui tam is a provision of the federal False Claims Act that allows private citizens to file “whistleblower” lawsuits in the name of the federal government for fraud by government contractors and others who receive or use government funds, and share in any money recovered. To encourage whistleblowers to come forward, the law grants them 15 to 30 percent of the money the government recovers. Although most of the early successes in qui tam actions were against defense contractors, for the last several years, health care has accounted for the lion’s share of settlements and judgments. In 2005, the federal government obtained over $1.1 billion in association with qui tam actions, with whistleblower shares amounting to $166 million.

I think my employer is filing false Medicare claims. What should I do?
Potential whistleblowers should consult an attorney - most of whom, if they have experience with "qui tam" lawsuits, will review the case without charge.

Can my employer fire or retaliate against me for filing a qui tam action?
Under the federal False Claims Act, a company cannot fire, demote, suspend or in any way discriminate against an employee investigating, initiating or assisting in a false claims case. If it does, whistleblowers are entitled to reinstatement, two times the amount of back pay plus interest, compensation for litigation costs and other compensation. They also can file wrongful termination lawsuits in state courts.

For more detailed questions regarding Qui Tam Whistle Blower cases, please click here.

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The Barry A. Cohen Law Group
Fifth Third Center 201 East Kennedy Blvd.
Suite 1950 Tampa, FL 33602