Our practice represents whistleblowers throughout the United States. For New York City residents, our attorneys may confidentially bring the highly complex Qui Tam lawsuits to ensure that private individuals, called relators, are heard and that the government is fully informed of the potential False Claims Act (“FCA”) violations.
Private Litigants Who Wish to Bring Qui Tam Lawsuits
We often receive questions from private individuals who suspect that the company they work for is violating the FCA or other laws impacting the government. An action commenced by a private person is viewed by the legal system similar to the government taking action against a defendant. The private person steps in the shoes of and brings the case in the name of the government. Further, the person filing the suit is referred to as the relator or qui tam plaintiff. The term qui tam is derived from a Latin phrase meaning “who as well for the king as for himself sues in this matter.” Qui tam plaintiffs are generally (but are not required to be) employees or contractors of the defendant companies, customers, or even competitors who have “blown the whistle” on the company’s activities.
Qui tam plaintiffs commencing an FCA lawsuit must:
- File the complaint under seal – often with the assistance of an experienced attorney, and
- Give the government a copy of the complaint and substantially all material evidence and information they possess. (31 U.S.C. § 3730(b)(2).)
The government uses the information provided by the qui tam plaintiff to investigate the claims and may elect to intervene in the case, which it must do within 60 days of receiving the complaint. However, courts routinely extend this 60-day time period for good cause shown. The defendant company is not served or otherwise formally made aware of the litigation while the complaint remains under seal.
Under the FCA, there are two overarching actions that clearly lead to violations and that we routinely handle for our whistleblower clients. The first is liability that is borne from a company that knowingly presented, or caused to be presented, a false or fraudulent claim for payment from the government. Another is liability from a company that knowingly made, used or caused to be made or used, a false statement or record that was material to a false or fraudulent claim.
There are other, more specific, well-established actions that cause companies FCA liability. For example, a reverse false claim occurs when a company improperly retains an overpayment (could be money or property) made by the government. Another is when individuals at a company conspire to violate one of the above overarching actions. Companies have also been found guilty of FCA violations when they intend to defraud the government by sending it a document certifying an action without actually knowing if the information on the certification is correct. A blatant FCA violation has taken place when a company knowingly buys or receives an obligation or debt public property from a government official where that official was not permitted to sell that property. In addition, the FCA has provisions that disallow retaliation against employees, contractors or third parties for reporting or try to stop FCA violations.
False Claims Act Requirement – Broad Knowledge Standard
For a whistleblower Qui Tam claimant to succeed, he or she must have a solid case where the defendant company acted “knowingly.” “Knowingly” has been broadly interpreted to include actual knowledge, deliberate ignorance of the truth or falsity of the information at the crux of the violation, or reckless disregard of the truth or falsity of the information. There is no requirement that the defendant had a specific intent to defraud the government.