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False Claims Act Qui Tam Whistleblower Lawyers: Guide for False Claims Act Relators/Whistleblowers

The qui tam provisions of the False Claims Act have been enormously effective in enlisting private citizens to combat fraud against the government.  Qui tam whistleblowers, also known as relators, have enabled the government to recover more than $70 billion.  In fiscal year 2017 alone, qui tam actions brought by whistleblowers resulted in $3.4 billion in settlements and judgments, and the government paid $392 million in whistleblower awards to False Claims Act whistleblowers. Whistleblowers now initiate nearly 80 percent of False Claims Act recoveries.

In conjunction with co-counsel, Zuckerman has successfully represented whistleblowers disclosing off-label marketing, Medicare fraud, medical device fraud, DoD procurement fraud, and student loan fraud.

Described by the National Law Journal as a “leading whistleblower attorney,” founding Principal Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases.

Three of the matters he has worked on are featured in Tom Mueller’s seminal book about whistleblowing Crisis of Conscience: Whistleblowing in an Age of Fraud and Dan Maldea’s Corruption in U.S. Higher Education: The Stories of Whistleblowers.  False Claims Act qui tam cases he has worked on in conjunction with other attorneys have resulted in recoveries in excess of $100 million.

Call our False Claims Act whistleblower lawyers today at 202-262-8959 to find out if you might be eligible for a False Claims Act whistleblower award.

Click here to read reviews from clients that we have represented in whistleblower rewards and whistleblower retaliation matters.

To learn about False Claims Act whistleblower protection, see our FCA whistleblower retaliation FAQ.

Frequently Asked Questions About False Claims Act Qui Tam Whistleblower Law

SEC whistleblower awardsA qui tam whistleblower can be eligible for a large recovery.  But there are many pitfalls and obstacles to proving liability, and there are unique rules and procedures that govern qui tam whistleblower cases.  Therefore, it is critical to retain an experienced False Claims Act whistleblower lawyer to maximize your recovery.  This FAQ provides an overview of some of the key aspects of False Claims Act claims.

What is a qui tam whistleblower lawsuit? Expand

The False Claims Act authorizes whistleblowers, also known as qui tam “relators,” to bring suits on behalf of the United States against the false claimant and obtain a portion of the recovery, otherwise known as a relator share. The phrase “qui tam ” is short for qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning “who [qui ] sues in this matter for the king as well as [tam ] for himself.” U.S. ex rel. Bogina v. Medline Indus., Inc., 809 F.3d 365, 368 (7th Cir. 2016).

False Claims Act whistleblowers (also known as relators) are eligible to receive 10% to 30% of the recovery.  In an intervened case, the relator can obtain 15% to 25% of the recovery, depending upon the extent to which the person substantially contributed to the prosecution of the action.

In a non-intervened case, the relator can obtain between 25% to 30% of the recovery.  Additionally, a qui tam relator (whistleblower) who prevails in an FCA action-regardless of whether the government intervenes-is entitled to “reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs.” 31 U.S.C. § 3730(d).  Qui tam whistleblower lawsuits have enabled the government to recover more than $60 billion.

The False Claims Act also protects whistleblowers from retaliation.

What types of false claims are prohibited by the False Claims Act? Expand

The False Claims Act prohibits:

  • knowingly presenting, or causing to be presented, a false or fraudulent claim for payment or approval; and
  • knowingly making, using, or causing to be made or used, a false record or statement material to a false or fraudulent claim.

To prevail, a qui tam whistleblower must prove that:

  1. the defendant submitted a claim to the government;
  2. the claim was false; and
  3. the defendant knew the claim was false.

What is the first-to-file bar in False Claims Act qui tam cases? Expand

The first-to-file bar prohibits a whistleblower from bringing suit based on a fraud already disclosed through identified public channels, unless the whistleblower is “an original source of the information.” Pursuant to the first-to-file bar, “[w]hen a person brings an action under [the False Claims Act], no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). The first-to-file bar encourages prompt filing.

  • Where two complaints allege “all the essential facts” of the underlying fraud, then the first complaint will typically preclude the later complaint, even if the later-in-time complaint incorporates different details.
  • Where a second complaint provides additional information that suggests a broader scope of fraud than the initial complaint, the second complaint might be barred where the government knows the essential facts of a fraudulent scheme because it has sufficient information to discover related frauds.
  • To bar later-filed qui tam actions, the allegedly first-filed qui tam complaint must not itself be jurisdictionally or otherwise barred, e.g., if the first-filed complaint fails to plead fraud with particularity, as required by Rule 9(b).
  • The Fourth Circuit Court of Appeals recently held that the appropriate reference point for a first-to-file analysis is the set of facts in existence at the time that the FCA action under review is commenced. Facts that may arise after the commencement of a relator’s action, such as the dismissals of earlier-filed, related actions pending at the time the relator brought his or her action, do not factor into this analysis.

The first-to-file bar underscores the importance of reporting fraud promptly and seeking counsel to evaluate potential claims.

What is the requirement to file a False Claims Act qui tam action under seal? Expand

The False Claims Act requires that a qui tam action must be filed under seal and remain sealed for at least 60 days. This procedure enables the government to investigate the matter, so that it may decide whether to take over the relator’s action or to instead allow the relator to litigate the action in the government’s place.  The purpose of the seal provision is to avoid alerting defendants to a pending federal criminal investigation.  State Farm Fire and Cas. Co. v. US, 137 S. Ct. 436 (2016).

Failure to file under seal could potentially jeopardize a relator’s ability to recover a whistleblower bounty, but the False Claims Act does not require automatic dismissal for a seal violation

The “sealing period, in conjunction with the requirement that the government, but not the defendants, be served, was ‘intended to allow the Government an adequate opportunity to fully evaluate the private enforcement suit and determine both if that suit involves matters the Government is already investigating and whether it is in the Government’s interest to intervene and take over the civil action.”  United States ex rel. Pilon v. Martin Marietta Corporation, 60 F.3d 995, 998-99 (quoting S. Rep. No. 345, 99th Cong., 2d Sess. 24, reprinted in 1986 U.S.C.C.A.N. 5266, 5289).

False Claims Act retaliation claim can also be filed under seal (in conjunction with a qui tam action).

To initiate a False Claims Act qui tam action, the relator (whistleblower) must serve a copy of the qui tam complaint along with a “written disclosure of substantially all material evidence and information the [relator] possesses” on the Government. 31 U.S.C. § 3730(b)(2).  The complaint remains under seal for at least 60 days, and shall not be served on the defendant.  During this 60-day period, the Government is charged with investigating the allegations and “may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal.” 31 U.S.C. §§ 3730(b)(2), (3).

Before the 60-day period (or any extensions obtained) expire, the Government shall either “(A) proceed with the action, in which case the action shall be conducted by the Government; or (B) notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action.” 31 U.S.C. § 3730(b)(4).

What is a reverse false claim? Expand

Reverse false claims liability arises where an entity or individual avoids the payment of money due to the government, e.g., failing to pay royalties owed to the government for mining on public lands.

Section 3729(a)(1)(G) creates liability for a person who “knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government,” or who “knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G).

To establish reverse false claim liability, a qui tam relator must show:

  1. proof that the defendant made a false record or statement
  2. at a time that the defendant had a presently-existing obligation to the government – a definite and clear obligation to pay money or property at the time of the allegedly false statements.

Reverse FCA liability can be supported by “`proof that the defendant made a false record or statement at a time that the defendant owed to the government an obligation’ . . . to pay money or property.” Chesbrough v. VPA, P.C., 655 F.3d 461, 473 (6th Cir. 2011)).

The term “obligation,” as it is used in the FCA’s reverse false claims provision, expressly includes any “established duty, whether or not fixed, arising from. . . . the retention of any overpayment. 31 U.S.C.A. § 3729(b)(3). By statute, Medicare requires that “[a]n overpayment must be reported and returned” to the program no later than “the date which is 60 days after the date on which the overpayment was identified.” 42 U.S.C. § 1320a-7k(d)(2).  CMS has provided the following guidance regarding what it means to have “identified” an overpayment:

A person has identified an overpayment when the person has, or should have through the exercise of reasonable diligence, determined that the person has received an overpayment and quantified the amount of the overpayment. A person should have determined that the person received an overpayment and quantified the amount of the overpayment if the person fails to exercise reasonable diligence and the person in fact received an overpayment.

42 C.F.R. § 401.305(a)(2). Internal audits can provide evidence that a provider knew about overpayments and chose not to return the overpayments to CMS.

What is the statute of limitations for a False Claims Act qui tam action? Expand

The statute of limitations for a qui tam action is the longer of 1) six years from when the fraud is committed, or 2) three years after the United States knows or should know about the material facts, but not more than 10 years after the violation. Under § 3731(b)(2), the Government may bring an FCA action within up to 10 years of an FCA violation, provided that the suit was commenced within three years of the date that “the official of the United States charged with responsibility to act in the circumstances” knew or reasonably should have known of the facts material to the right of action.

In Cochise Consultancy Inc. v. United States, ex rel. Huntthe Supreme Court held that both Government-initiated suits under § 3730(a) and relator-initiated suits (qui tam actions) under § 3730(b) are civil actions under section 3730 and therefore the longer limitations period applies in non-intervened qui tam actions.

The relevant “official” whose knowledge triggers the three-year limitations period of § 3731(b)(2) is the Attorney General or his or her designees within the Department of Justice.

The statute of limitations for a False Claims Act whistleblower retaliation case is three years.

What is the public disclosure bar in the False Claims Act? Expand

The public disclosure bar prohibits a qui tam relator from bringing a False Claims Act lawsuit based on a fraud that has already been disclosed through certain public channels, unless the relator is an “original source” of the information. 31 U.S.C. § 3730(e)(4)(A).

An original source is “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 [suit].”  § 3730(e)(4)(B).

The public disclosure bar asks whether the relator’s allegations are “substantially similar” to publicly available information. United States ex rel. Davis v. District of Columbia, 679 F.3d 832, 836 (D.C. Cir. 2012).  “Where a public disclosure has occurred, [the government] is already in a position to vindicate society’s interests, and a qui tam action would serve no purpose.” United States ex rel. Feingold v. AdminaStar Federal, Inc., 324 F.3d 492, 495 (7th Cir. 2003).

But the public disclosure bar does not dictate that a relator must “possess direct and independent knowledge of all of the vital ingredients to a fraudulent transaction.”  United States ex rel. Springfield Terminal Railway Co. v. Quinn, 14 F.3d 645, 656 (D.C. Cir. 1994).  Rather, “direct and independent knowledge of any essential element of the underlying fraud transaction” is sufficient to give the relator original-source status under the Act. Id. at 657.

In Springfield Terminal, the D.C. Circuit set forth specific criteria to evaluate whether the public disclosures bars a qui tam action:

  1. The government has “enough information to investigate the case” either when the allegation of fraud itself has been publicly disclosed, or when both of its underlying factual elements-the misrepresentation and the truth of the matter-are already in the public domain.
  2. “[I]f X + Y = Z, Z represents the allegation of fraud and X and Y represent its essential elements. In order to disclose the fraudulent transaction publicly, the combination of X and Y must be revealed, from which readers or listeners may infer Z, i.e., the conclusion that fraud has been committed.” Id. at 654. Because the publicly disclosed pay vouchers reflected only the false statement (the arbitrator’s claim for payment) and not the true facts (the services actually rendered), we held that the public disclosure bar did not apply. Id. at 655-56. That said, we stressed that a qui tam action cannot be sustained where both elements of the fraudulent transaction-X and Y-are already public, even if the relator “comes forward with additional evidence incriminating the defendant.”

A September 2018 Third Circuit decision in Pharamerica clarifies that the FCA’s public disclosure bar is not triggered when a relator relies upon non-public information to make sense of publicly available information, where the public information – standing alone – could not have reasonably or plausibly supported an inference that the fraud was in fact occurring.  Similarly, the D.C. Circuit has held that the public disclosure bar is not triggered where the relator “supplied the missing link between the public information and the alleged fraud” by “rel[ying] on nonpublic information to interpret each [publicly disclosed] contract,” and where “[w]ithout [relator’s] nonpublic sources . . . there was insufficient [public] information to conclude” that the defendant actually engaged in the alleged fraud.  United States ex rel. Shea v. Cellco P’ship, 863 F.3d 923, 935 (D.C. Cir. 2017).

Courts in the Fifth Circuit apply a three-part test to determine whether the public disclosure bar applies, asking: “(1) whether there has been a `public disclosure’ of allegations or transactions, (2) whether the qui tam action is `based upon’ such publicly disclosed allegations, and (3) if so, whether the relator is the `original source’ of the information.” U.S. ex rel. Reagan v. E. Tex. Med. Ctr. Reg’l Healthcare Sys., 384 F.3d 168, 173 (5th Cir. 2004) (quotations omitted). The Court is not required to rigidly follow the three steps. U.S. ex rel. Jamison v. McKesson Corp., 649 F.3d 322, 327 (5th Cir. 2011). Indeed, the Fifth Circuit has recognized that “combining the first two steps can be useful, because it allows the scope of the relators’ action in step two to define the `allegations or transactions’ that must be publicly disclosed in step one.” Id.; see also U.S. ex rel. Fried v. W. Indep. Sch. Dist., 527 F.3d 439, 442 (5th Cir. 2008) (combining the first two steps).

What is the original source exception to the public disclosure bar? Expand

The public disclosure bar prohibits a relator from bringing a False Claims Act lawsuit based on a fraud that has already been disclosed through certain public channels, unless the relator is an “original source” of the information. 31 U.S.C. § 3730(e)(4)(A).

An “original source” is “an individual who either (1) prior to a public disclosure under subsection (e)(4)(a), has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based or (2) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntary provided the information to the Government before filing an action.” § 3730(e)(4)(B).

If you have original information about fraud, it is important to retain counsel promptly.  For example, if a government investigator interviews you before you have voluntarily come forward to disclose the fraud, your disclosure to the investigator will likely not qualify for any whistleblower award.  See City of Chicago ex rel. Rosenberg v. Redflex Traffic Systems, 884 F.3d 798, 805 (7th Cir. 2018), citing United States ex rel. Paranich v. Sorgnard, 396 F.3d 326 (3d Cir. 2005) (voluntary requirement of federal False Claims Act “is designed to reward those who come forward with useful information and not those who provide information in response to a governmental inquiry”); Barth v. Ridgedale Electric, Inc., 44 F.3d 699, 704 (8th Cir. 1994) (qui tam relator did not “voluntarily provide” information to the government where government began its investigation first and investigator initiated interview with relator; “rewarding [relator] for merely complying with the government’s investigation is outside the intent of the Act.”)

What is materiality under the False Claims Act? Expand

The False Claims Act (FCA) defines “material” as “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” 31 U.S.C. § 3729(b)(4).  In United States ex rel. Escobar v. Universal Health Servs., Inc., the Supreme Court held that FCA liability can attach for violating statutory or regulatory requirements, whether or not those requirements were designated in the statute or regulation as conditions of payment.

In particular, the Escobar Court held that “liability can attach when the defendant submits a claim for payment that makes specific representations about the goods or services provided, but knowingly fails to disclose the defendant’s noncompliance with a statutory, regulatory or contractual requirement. In these circumstances, liability may attach if the omission renders those representations misleading.” 136 S. Ct. 1989, 1995 (2016).  A Fifth Circuit decision summarizes the core holding of Escobar:

A violation is material if a reasonable person “would attach importance to [it] in determining his choice of action in the transaction” or “if the defendant knew or had reason to know that the recipient of the representation attaches importance to the specific matter `in determining his choice of action,’ even though a reasonable person would not.”

United States ex rel. Lemon v. Nurses To Go, Inc., 924 F.3d 155, 163 (5th Cir. 2019) (quoting Escobar I, 136 S. Ct. at 2002-03 (alteration in original) (quoting Restatement (Second) of Torts § 538 (1976))).

In Escobar, the Court articulated the following factors governing the materiality analysis, with no one factor being necessarily dispositive:

  • whether compliance with a statute is a condition of payment;
  • whether the violation goes to “the essence of the bargain” or is “minor or insubstantial”;
  • whether the government consistently pays or refuses to pay claims when it has knowledge of similar violations; and
  • whether the government would likely refuse payment had it known of the regulatory violations.

false claims act whistleblower bountyAs Escobar addresses only an implied certification theory, Escobar‘s materiality requirement should not extend to all types of FCA claims.  For example, an express misrepresentatione.g., a health insurer expressly agreeing to comply with Medicare rules and regulations when it does not, would violate the FCA.  See, e.g., U.S. ex rel. McCarthy v. Marathon Techs., Inc., No. 11 C 7071, 2014 WL 4924445 (N.D. Ill. Sept. 30, 2014).

Examples of Material False Claims

Examples of material false claims include:

  • A drug company Seeking and obtaining payment for off-label uses of certain drugs.  See U.S. ex rel. Brown v. Celgene Corp., 226 F. Supp. 3d 1032 (C.D. Cal. 2016).
  • A private security company submitting false weapons qualifications for the services of protective services personnel who had not fulfilled the required weapons training. United States ex rel. Beauchamp v. Academi Training Center, Inc., 220 F. Supp. 3d 676 (E.D. Va. 2016).
  • Submitting a false hospice certification. See, e.g., Druding v. Care Alternatives, Inc., 164 F. Supp. 3d 621, 629 (D.N.J. 2016); United States ex rel. Fowler v. Evercare Hospice, Inc., No. 11-CV-00642-PAB-NYW, 2015 WL 5568614, at *7 (D. Colo. Sept. 21, 2015) (“the requirement that physicians’ certifications are accompanied by clinical information and other documentation that support a patient’s prognosis is a condition of payment under applicable Medicare statutes and regulations.”); see also, e.g., United States ex rel. Hinkle v. Caris Healthcare, L.P., No. 3:14-CV-212-TAV-HBG, 2017 WL 3670652, at *9 (E.D. Tenn. May 30, 2017) (“the government’s complaint alleges that defendants’ written certifications were false, in that the documentation for certain patients did not support a prognosis of terminal illness.”).
  • A contractor engaged to provide security for Al Asad Airbase in Iraq violated the FCA by falsifying certifications of marksmanship and knowingly billing the Government the full contract price for guards who failed to meet the contractually specified marksmanship qualification. United States v. Triple Canopy, Inc., 857 F.3d 174, 177 (4th Cir. 2017).  The court held that such misrepresentations were material because the Government’s decision to pay “would be influenced by knowledge that the guards could not … shoot straight.” Id. at 176.

The federal government’s payment of a claim after it learns of untruthful certifications or attestations about compliance with regulatory or contractual duties is not a shield from liability.  See Campie v. Gilead Sciences, Inc., 862 F.3d 890, 906 (9th Cir. 2017).

What is “Scienter” Under the False Claims Act? Expand

Scienter Under the False Claims Act Does Not Require Proof of Specific Intent

An ordinary breach of a government contract caused by an honest mistake ordinarily does not give rise to False Claims Act liability.  To prevail in a qui tam action, a relator must prove the defendant acted knowingly, i.e., that the defendant “(i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information.”  31 U.S.C. § 3729(b).  But proof of specific intent to defraud is not required.  Therefore, a person who acts in deliberate ignorance or reckless disregard of a false or fraudulent claim can be liable under the False Claims Act.

As amended by the Fraud Enforcement and Recovery Act of 2009, a person is liable under the False Claims Act if he “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.”  There is no requirement to prove that a false statement was made with the intent that it would result in the federal government paying the claim.

Is a Violation of the Anti-Kickback Law Also a Violation of the False Claims Act? Expand

Stark Act Violations or Kickbacks Can Violate the False Claims Act

  • Both the Stark Act and the Anti-Kickback Act prohibit a health care provider from submitting claims to Medicare based upon referrals from physicians who have a “financial relationship” with the health care entity, unless a statutory or regulatory exception or safe harbor applies. 42 U.S.C. §§ 1395nn(a)(1); 1320a-7b(b).  In particular, the Stark Act prohibits “knowingly and willfully” offering or paying “any remuneration . . . to any person to induce such person . . . to refer an individual to a person for the furnishing . . . of any item or service for which payment may be made in whole or in part under a Federal health care program.” 42 U.S.C. § 1320a-7b(b)(2)(A).  And it prohibits “knowingly and willfully solicit[ing] or receiv[ing]” kickbacks “in return” for such conduct.  Id. § 1320a-7b(b)(1)(A).
  • The Stark Act expressly prohibits Medicare from paying claims that do not satisfy each of its requirements, including every element of any applicable exception.  42 U.S.C. §§1395nn(a)(1), (g)(1).
  • “Falsely certifying compliance with the Stark or Anti-Kickback Acts in connection with a claim submitted to a federally funded insurance program is actionable under the FCA.”  United States  ex rel. Kosenske v. Carlisle HMA, Inc., 554 F.3d 88, 95 (3d Cir. 2009) (citing United States ex rel. Schmidt v. Zimmer, Inc., 386 F.3d 235, 243 (3d Cir. 2004) (other citations omitted)).  Typically submission of a claim to Medicare requires the provider to certify compliance with the Anti-Kickback Law on CMS Form 855s, which states in relevant part “I understand that payment of a claim by Medicare is conditioned upon the claim and the underlying transaction complying with [Medicare] laws, regulations, and program instructions (including, but not limited to, the Federal [A]nti-[K]ickback [S]tatute . . . ), and on the supplier’s compliance with all applicable conditions of participation in Medicare.”
  • In other words, a claim for payment made pursuant to an illegal kickback is false under the FCA.  United States ex rel. Quinn v. Omnicare, Inc., 382 F.3d 432, 439 (3d Cir. 2004). It is well-settled that “claims for payment made pursuant to illegal kickbacks are false under the [FCA].” United States ex rel. Greenfield v. Medco Health Sols., Inc., 880 F.3d 89, 95 (3d Cir. 2018) (quoting United States ex rel. Westmoreland v. Amgen, Inc., 812 F. Supp. 2d 39, 52 (D. Mass. 2011)).  When a claim is tainted by an AKS violation, it is automatically legally “false” under the FCA. Greenfield, 880 F.3d at 95. Therefore, once a violation of the AKS has been established, the first element of the FCA, falsity, has been met.
  • A defendant can avoid liability under the Stark Act by demonstrating that either a statutory or regulatory exception (or safe harbor) applies.  The safe harbor exceptions recognize that financial arrangements between physicians and health care entities may exist for legitimate reasons independent of referrals.

Note that opposing kickbacks or raising concerns about kickbacks is protected conduct under the False Claims Act anti-retaliation provision.  For more information about False Claims Act whistleblower protection, click here.

For more information about the False Claims Act, Anti-Kickback Statute, Physician Self-Referral Law, and Exclusion Statute, see the HHS OIG’s roadmap for physicians about fraud and abuse laws.

As explained in a recent DOJ press release, “The Anti-Kickback Statute prohibits offering, paying, soliciting, or receiving remuneration to induce referrals of items or services covered by Medicare, Medicaid, and other federally funded programs.  The Physician Self-Referral Law, commonly known as the Stark Law, prohibits a hospital from billing Medicare for certain services referred by physicians with whom the hospital has an improper financial arrangement, including the payment of compensation that exceeds the fair market value of the services actually provided by the physician.  Both the Anti-Kickback Statute and the Stark Law are intended to ensure that physicians’ medical judgments are not compromised by improper financial incentives and instead are based on the best interests of their patients. Claims submitted under the Anti-Kickback Statute and the Stark Law violate the False Claims Act.”

Does the False Claims Act Prohibit Bid-Rigging? Expand

Bid rigging can violate the False Claims Act (FCA) under a fraudulent inducement theory.  In a seminal FCA case, electrical contractors entered into a collusive bidding scheme in which they averaged the price of the prospective bids and then chose from among the contractors one who would submit a bid for the averaged amount, while the others submitted higher bids.  U. S. ex rel. Marcus v. Hess, 317 U.S. 537 (1943).  The Court found that this type of collusive bidding qualified as a false claims violation.

Recently Concept Schools, a charter school management company, paid $4.5M to settle a False Claims Act case alleging that it rigged the bidding for E-Rate contracts between 2009 and 2012 in favor of chosen technology vendors so that its network of charter schools located in several states selected the chosen vendors without a meaningful, fair and open bidding process.  Additionally, the government alleged that Concept Schools’ chosen vendors provided equipment at higher prices than those approved by the FCC for equipment with the same functionality.

Does the False Claims Act Prohibit Fraudulent Inducement of a Contract? Expand

Fraudulent Inducement of a Contract and False Claims Act Liability

Where a contract is “procured by fraud,” False Claims Act liability flows from fraudulent inducement.  Examples of fraudulent inducement include:

  • the contractor knowingly provides the government with price lists and discounts containing false information in order to induce it to enter into the contract;
  • the contractor makes an initial misrepresentation about its capability to perform the contract in order to induce the government to enter into the contract; or
  • a party makes promises at the time of contracting that it intends to break.

false claims act lawyersWhere a defendant causes a contract to be procured by fraud, all claims for payment made under that contract are deemed false for purposes of the False Claims Act, even if the claims do not themselves contain a false statement. U.S. ex rel. Marcus v. Hess, 63 S. Ct. 379, 384 (1943)(holding the initial act of fraud to induce government contract “tainted” every subsequent claim for payment); see also U.S. ex rel. Main v. Oakland City Univ., 426 F.3d 914, 917 (7th Cir. 2005).  The core issue is whether the defendant entered into a government contract with the intent not to perform or with the knowledge that it could not perform as promised.” U.S. ex rel. Blaum v. Triad Isotopes, Inc., 104 F. Supp. 3d 901, 914 (N.D. Ill. 2015). Can a violation of Good Manufacturing Practices give rise to False Claims Act Liability? Expand

Yes, and indeed drug manufacturer Ranbaxy pleaded guilty to seven felonies related to Good Manufacturing Practices violations at facilities in India and paid $500 million in penalties.  Good Manufacturing Practices (“GMPs”) are the standards for quality control and product testing set forth at 21 C.F.R. pt. 211.

A GMP violation can be sufficient to give rise to FCA liability if the drug’s strength materially differed from, or the purity or quality fell below, the strength, purity or quality specified in the drug’s FDA-approved New Drug Application, the drug’s labeling, and/or the standards set forth in an official compendium.  Similarly, manufacturing deficiencies affecting the strength, purity and/or quality of the affected drug such that the drug is essentially “worthless” and not eligible for payment by the government can give rise to FCA liability.  The defect must be so significant that what was provided was “understood to be different” from the approved drug.

But there are limitations:

  • A minor or trivial departure from GMPs might not be actionable.
  • In the Fourth Circuit, when a new drug has been approved by the FDA and thus qualifies for reimbursement, a claim for reimbursement is not a false claim merely due to adulteration.  See Barry Rostholder vOmnicareInc., 745 F.3d 694 (4th Cir. 2014).

Is there a heightened pleading requirement for False Claims Act qui tam cases? Expand

False Claims Act qui tam actions must meet the heightened pleading requirement set forth in Federal Rule of Civil Procedure 9(b).  In other words, a quit tam relator must “state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b).  The complaint must “identify ‘the who, what, when, where, and how of the misconduct charged,’ as well as ‘what is false or misleading about [the purportedly fraudulent] statement, and why it is false.'” Cafasso ex rel. United States v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)

Note though that in the Ninth Circuit, the relator need not “identify representative examples of false claims to support every allegation.” Ebeid ex rel. U.S. v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010).  Similarly, in the Eleventh Circuit, there is no requirement for a qui tam relator to provide exact billing data.  Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1312 & n.21 (11th Cir. 2002).  Rather, a complaint must contain “some indicia of reliability” that a false claim was actually submitted. Clausen, 290 F.3d at 1311. “For instance, a relator with first-hand knowledge of the defendant’s billing practices may possess a sufficient basis for alleging that the defendant submitted false claims.” United States ex rel Patel v. GE Healthcare, Inc., No. 8:14-cv-120-T-33TGW, 2017 WL 4310263, at *6 (M.D. Fla. Sept. 28, 2017).

“An FCA claimant is not required to show `the exact content of the false claims in question’ to survive a motion to dismiss, as `requiring this sort of detail at the pleading stage would be one small step shy of requiring production of actual documentation with the complaint, a level of proof not demanded to win at trial and significantly more than any federal pleading rule contemplates.'” United States v. Executive Health Resources, Inc., 196 F.Supp.3d 477, 492 (E.D.Pa. 2016) (citing Foglia, 754 F.3d at 156); Gohil, 96 F.Supp.3d at 519 (“[A relator] is not required to plead the details of any false claim submitted for payment[.]”)

But it is critical to connect the fraud scheme to the submission of false claims.  In United States ex rel. Booker v. Pfizer, Inc., 847 F.3d 52, 58 (1st Cir. 2017), the First Circuit held that “aggregate [information] reflecting the amount of money expended by Medicaid” on off-label prescriptions was “insufficient on its own to support a[] [False Claims Act] claim” because it did not show “an actual false claim made to the [G]overnment.”

To satisfy Rule 9(b), the whistleblower “must provide ‘particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted'”; “[d]escribing a mere opportunity for fraud will not suffice.” See Foglia v. Renal Ventures Mgmt., 754 F.3d 153, 157-58 (3d Cir. 2014).

As summarized in United States of America ex rel. Donna Rauch v. Oaktree Medical Centre, P.C., No. 6:15-cv-01589 (D.SC March 5, 2020), the Fourth Circuit applies the following Rule 9(b) standard:

“To satisfy Rule 9(b), a plaintiff asserting a claim under the [FCA] `must, at a minimum, describe the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.'” Nathan, 707 F.3d at 455-56 (quoting United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008)). The Fourth Circuit has held that “allegations of a fraudulent scheme, in the absence of an assertion that a specific false claim was presented to the government for payment” are insufficient to meet Rule 9(b)’s heightened pleading standard. Id. at 456. “Instead, the critical question is whether the defendant caused a false claim to be presented to the government, because liability under the [FCA] attaches only to a claim actually presented to the government for payment, not the underlying fraudulent scheme.” Id. (citing Harrison, 176 F.3d at 785). In the event a relator does not plead with particularity that specific false claims actually were presented to the government for payment, a relator’s complaint may still survive a Rule 9(b) challenge only if it “allege[s] a pattern of conduct that would `necessarily have led[ ] to submission of false claims’ to the government for payment.” Grant, 912 F.3d at 197 (quoting Nathan, 707 F.3d at 457) (alteration and emphasis in original).

A good example of meeting the Rule 9(b) requirement without pleading actual submission of invoices to the government is United States ex rel. Saldivar v. Fresenius Med. Care Holdings, Inc., 906 F. Supp. 2d 1264, 1269 (N.D. Ga. 2012), a case in which the relator worked for a dialysis service provider and managed the facility’s inventory of two drugs. Based upon the relator’s observations of the inventory, he believed the facility submitted “fraudulent reimbursement claims” by “bill[ing] the government for doses of [drugs] that it received for free.” Id. Although the relator did not work in the billing department, the court found the relator satisfied Rule 9(b) because his belief was based upon his observation of the facility’s inventory documents and a conversation with “his clinical manager inform[ing] him that those documents were used as the basis upon which [the facility] billed for reimbursement.” Id. at 1277. Does the False Claims Act authorize treble damages? Expand

The False Claims Act provides that any entity violating 31 U.S.C. § 3729(a)(1) is liable for three times the amount of damages that the Government sustains because of the fraud.

In addition, the False Claims Act imposes a penalty for each violation or each false claim. As of December 13, 2021, the minimum False Claims Act penalty is $11,803 per claim and the maximum penalty is $23,607 per claim.

Must a False Claims Act qui tam relator have firsthand knowledge of all aspects of the fraud? Expand

Generally, the qui tam relator (the whistleblower) need not have firsthand knowledge of every aspect of the fraud scheme. The First, Third, Fifth, and Ninth Circuits have taken a more nuanced reading of the Rule 9(b) heightened pleading requirement, holding that it is sufficient for a plaintiff to allege “particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that [false] claims were actually submitted.”

Recently the First Circuit held that “nothing in the statutory text limits ‘direct knowledge’ to knowledge gained from participation in or observation of the fraud. The statute requires only that the person have ‘direct and independent knowledge of the information on which the allegations are based,’ not direct and independent knowledge of the fraudulent acts themselves.” United States ex rel. Banigan v. PharMerica, Inc., 2020 WL 813258 (1st Cir. Feb 19, 2020).

In U.S. ex rel. Galmines v. Novartis Pharm. Corp., 88 F.Supp.3d 447, 456 (E.D.Pa. 2015). the court indicated “that Third Circuit appellate precedent does not require [relator] to have firsthand knowledge of `all the relevant information’ on which his allegations are based, and that “a relator’s allegations need not be strictly limited to the information as to which she has direct and independent knowledge, provided that the relator has direct and independent knowledge of the critical elements of the alleged fraudulent scheme.” The court in Galmines found that it should “allow original-source relators to pursue the entire fraudulent scheme for which they have direct and independent knowledge of the operative substantive facts, and not to limit relators to the specific time periods for which they have direct and independent knowledge, particularly where the relator has alleged the scheme was `continuing’ as of the day they lost their direct and independent knowledge by reason of a cessation of employment or equivalent development.” An “original source” is “an individual who has direct and independent knowledge of the information on which the allegations are based.” 31 U.S.C. §3730(e)(4)(B). Collapse

2022 Qui Tam False Claims Act Settlements

$900MBiogen Inc. agreed to pay $900 million to resolve allegations that it violated the FCA by paying kickbacks to physicians to induce them to prescribe the company’s multiple sclerosis drugs. The relator alleged that Biogen held programs through which it offered and paid remuneration, including speaker honoraria, speaker training fees, consulting fees and meals, to health care professionals who spoke at or attended Biogen’s speaker programs, speaker training meetings or consultant programs to induce them to prescribe the drugs Avonex, Tysabri and Tecfidera in violation of the Anti-Kickback Statute.September 26, 2022Biogen Inc. Agrees to Pay $900 Million to Settle False Claims Act Allegations Related to Improper Physician Payments
$260MMallinckrodt resolved allegations that it violated the FCA by knowingly: 1) underpaying Medicaid rebates due for its drug H.P. Acthar Gel; and 2) using a foundation as a conduit to pay illegal co-pay subsidies in violation of the Anti-Kickback Statute for Acthar. March 7, 2022Mallinckrodt Agrees to Pay $260 Million to Settle Lawsuits Alleging Underpayments of Medicaid Drug Rebates and Payment of Illegal Kickbacks
$61MA jury ordered Eli Lilly and Co. to pay $61 million in damages for false claims about pricing to Medicaid programs to lower rebates that it owed to the states.August 2022Jury orders Lilly to pay $61M in whistleblower Medicaid fraud case
$48.5MIn the largest-ever False Claims Act recovery based on allegations of small business contracting fraud, TriMark agreed to pay $48.5 million to resolve allegations that its subsidiaries, TriMark Gill Marketing and Gill Group, Inc. improperly manipulated federal small business set-aside contracts around the country. TriMark identified federal set-aside contract opportunities for the small businesses to bid on using their set-aside status; instructed them regarding how to prepare their bids and what prices to propose; “ghostwrote” emails for those companies to send to government officials to make it appear as though the small businesses were performing work that TriMark was performing; and affirmatively concealed TriMark’s involvement in the contract. February 23, 2022Government Contractor Agrees to Pay Record $48.5 Million to Resolve Claims Related to Fraudulent Procurement of Small Business Contracts Intended for Service-Disabled Veterans
$45M BioTelemetry, Inc. agreed to pay $44.875 million to settle allegations that it defrauded U.S. taxpayers by outsourcing critical remote medical services to technicians in India who were not properly trained.December 21, 2022Philadelphia-area Company To Pay $45 Million Whistleblower Settlement For Outsourcing Heart Monitoring To India
$45MModernizing Medicine Inc., an EHR technology vendor, agreed to pay $45 million to resolve allegations that it violated the FCA by accepting and providing unlawful remuneration in exchange for referrals and by causing its users to report inaccurate information in connection with claims for federal incentive payments.November 1, 2022Modernizing Medicine Agrees to Pay $45 Million to Resolve Allegations of Accepting and Paying Illegal Kickbacks and Causing False Claims
38.5MAcademy Mortgage Corporation agreed to pay $38.5 million to resolve allegations it violated the False Claims Act by improperly originating and underwriting mortgages insured by the Federal Housing Administration.December 14, 2022Academy Mortgage Corporation Agrees to Pay $38.5 Million to Settle False Claims Act Allegations Related to Mortgages Insured by the Federal Housing Administration
$40MRelator Simpson alleged that Bayer paid kickbacks to hospitals and physicians to induce them to utilize the drugs Trasylol and Avelox, and also marketed these drugs for off-label uses that were not reasonable and necessary. Simpson further alleged that Bayer downplayed the safety risks of Trasylol. Simpson also filed a second lawsuit alleging that Bayer knew about, but downplayed, Baycol’s risks of causing rhabdomyolysis. September 2, 2022Bayer to Pay $40 Million to Resolve the Alleged Use of Kickbacks and False Statements Relating to Three Drugs
$34MEargo agreed to pay $34.37 million to resolve allegations that it submitted or caused the submission of claims for hearing aid devices for reimbursement to the Federal Employees Health Benefits Program (FEHBP) that contained unsupported hearing loss diagnosis codes. April 29, 2022Hearing Aid Company Eargo Inc. Agrees to Pay $34.37 Million to Settle Common Law and False Claims Act Allegations for Unsupported Diagnosis Codes
$24.5MPhysician Partners of America LLC (PPOA), its founder, and its former chief medical officer agreed to pay $24.5 million to resolve allegations that they violated the FCA by billing federal healthcare programs for unnecessary medical testing and services, paying unlawful remuneration to its physician employees and making a false statement in connection with a loan obtained through the PPP. April 12, 2022Physician Partners of America to Pay $24.5 Million to Settle Allegations of Unnecessary Testing, Improper Remuneration to Physicians and a False Statement in Connection with COVID-19 Relief Funds
$24MRespironics, Inc. agreed to pay over $24 million to settle an FCA qui tam alleging improper inducement to DME suppliers. The government and the relator alleged that the defendant violated the Anti-Kickback Statute when it provided DME suppliers with free physician prescribing data for its marketing efforts to physicians. The purported illegal inducement allegedly caused the DME suppliers to submit false claims for respiratory-related medical equipment. September 1, 2022Philips Subsidiary to Pay Over $24 Million for Alleged False Claims Caused by Respironics for Respiratory-Related Medical Equipment
$22.9M CHC Holdings, LLC d/b/a Carter Healthcare, an Oklahoma limited liability company that provides home healthcare through subsidiaries in multiple states, as well as Stanley Carter and Brad Carter agreed to pay $22,948,004 to resolve allegations that Carter Healthcare wrongfully paid physicians to induce referrals of home health patients under the guise of medical directorships, resulting in the submission of false claims to the Medicare and TRICARE programs.October 18, 2022Oklahoma City Home Health Company and Two Former Corporate Officers Agree to Pay $22.9 Million to Settle Federal False Claims Act and Kickback Allegations Arising From Improper Payments to Referring Physicians
$22.5MDignity Health agreed to pay $22.5 million pursuant to two separate settlements to resolve allegations that they violated the FCA and CA FCA by causing the submission of false claims to Medi-Cal related to Medicaid Adult Expansion under the ACA. December 7, 2022Three Health Care Providers Agree to Pay $22.5 Million for Alleged False Claims to California’s Medicaid Program
$20MBayCare Health System Inc. and entities that operate four affiliated Florida hospitals (collectively BayCare) have agreed to pay the United States $20 million to resolve allegations that BayCare violated the False Claims Act by making donations to the Juvenile Welfare Board of Pinellas County (JWB) to improperly fund the state’s share of Medicaid payments to BayCare. The four hospitals are Morton Plant Hospital, Mease Countryside Hospital, Mease Dunedin Hospital and St. Anthony’s Hospital.
Specifically, the United States alleged that during this time, BayCare made improper, non-bona fide cash donations to JWB knowing that JWB would and then did transfer a portion of the cash donations to the State of Florida’s Agency for Health Care Administration for Florida’s Medicaid Program. The funds transferred by JWB to the state were “matched” by the federal government before being returned to the BayCare hospitals as Medicaid payments, and BayCare was thus able to recoup its original donations to JWB and also receive federal matching funds, in violation of the federal prohibition on non-bona fide donations. BayCare’s donations to JWB increased Medicaid payments received by BayCare, without any actual expenditure of state or local funds.
April 6, 2022Florida’s BayCare Health System and Hospital Affiliates Agree to Pay $20 Million to Settle False Claims Act Allegations Relating to Impermissible Medicaid Donations
$14.6MMassachusetts General Hospital, the clinical teaching arm for Harvard Medical School, resolved a federal whistleblower case stemming from allegations that some of the hospital's orthopedic surgeons engaged in overlapping surgeries that violated federal Medicare and Commonwealth of Massachusetts Medicaid rules. February 19, 2022MASS GENERAL HOSPITAL TO PAY $14.6 MILLION TO RESOLVE OVERLAPPING SURGERY CLAIMS; STANDARDIZED CONSENT FORMS TO BE AMENDED
$14MGeorgia Cancer Specialists, agreed to pay $8 million to resolve allegations that GCS solicited and received kickbacks for more than a decade, first from Option Care, an infusion pharmacy and medical equipment provider, and later from Amedisys, a Medicare nursing company. The whistleblowers received $2.4 million dollars, the maximum possible relators’ share.February 1, 2022Louis J. Cohen, Whistleblower Counsel, Announces Georgia Cancer Specialists Agrees to Pay $8 Million Dollars to Resolve Medicare Fraud Kickback and Stark Law Violations; Total Settlements Exceed $14 Million
$13MCardinal Health agreed to pay $13,125,000 to resolve allegations that it violated the False Claims Act by paying “upfront discounts” to its physician practice customers, in violation of the Anti-Kickback Statute.January 31, 2022Cardinal Health Agrees to Pay More than $13 Million to Resolve Allegations that it Paid Kickbacks to Physicians
$12.95MMedical device manufacturer Biotronik agreed to pay $12.95 million to resolve allegations that it violated the FCA by paying kickbacks to physicians to induce their use of Biotronik’s implantable cardiac devices, such as pacemakers and defibrillators. July 22, 2022Medical Device Manufacturer Biotronik Inc. Agrees To Pay $12.95 Million To Settle Allegations of Improper Payments to Physicians
$12.6MAdvanced Bionics LLC, manufacturer of cochlear implant system devices, agreed to pay more than $12 million to resolve allegations that it misled federal health care programs regarding the radio-frequency emission generated by some of its devices. More specifically, Advanced Bionics is alleged to have manipulated testing conditions to obtain passing test results by not testing processors in “worst-case” configurations, and improperly shielding certain emissions-generating components of the cochlear implant system during emissions testing – all contrary to the standard’s requirements. December 20, 2022Advanced Bionics LLC to Pay Over $12 Million for Alleged False Claims for Cochlear Implant Processors
$9.85BioReference agreed to pay $9.85 million to resolve alleged violations of the FCA arising from BioReference’s payment of above-market rents to physician landlords for office space to induce referrals to BioReference.July 14, 2022BioReference Laboratories and Parent Company Agree to Pay $9.85 Million to Resolve False Claims Act Allegations of Illegal Payments to Referring Physicians
$9MAerojet Rocketdyne Holdings Inc. and whistleblower Brian Markus settled a False Claims Act suit alleging that the company misled the government about its cybersecurity practices to gain missile defense and rocket engine contracts.April 29, 2022Aerojet Rocketdyne, Whistleblower Settle Cybersecurity Suit
$7.9MAkorn agreed to pay $7.9 million to settle a qui tam action alleging fraudulent billing of Medicare. The government and the relator alleged that the FDA approved of a prescription only ("Rx-only") to over the counter ("OTC") status conversion for three brand name drugs. The defendant allegedly made generic equivalents of the drugs, which would require it to seek FDA approval for OTC status or seek withdrawal of the products' Rx-only status and halt marketing. This purportedly caused Medicare Part D to pay for products ineligible for coverage.September 14, 2022Pharmaceutical Company Akorn Operating Company LLC Agrees to Pay $7.9 Million to Resolve Allegations of Fraudulent Billing
$7.4MSix surgery centers and medical offices affiliated with Interventional Pain Management Center P.C. settled a qui tam action for mischaracterizing acupuncture as a surgical procedure in order to dishonestly obtain millions of dollars from Medicare and the Federal Employees Health Benefit Program.

The defendants treated patients with electro-acupuncture devices called P-Stim and NeuroStim/NSS (“NSS”). P-Stim and NSS procedures transmit electrical pulses through needles placed just under the skin on a patient’s ear. Both treatments are considered acupuncture under Medicare and Federal Employees Health Benefit Program (“FEHBP”) guidelines and are therefore ineligible for reimbursement by the government. From January 2012 through April 2017, the IPMC surgery centers and medical offices submitted claims to Medicare and FEHBP for P-Stim and NSS treatment and associated administration of anesthesia. In submitting the claims, the defendants used a billing code that mischaracterized the acupuncture treatment as a surgical implantation of a neurostimulator.
January 12, 2022Surgery Centers and Medical Offices in New Jersey Settle Allegations of Federal Health Care Fraud
$6.85MYRC Freight Inc, Roadway Express Inc. and Yellow Transportation Inc. agreed to pay approximately $6.85 million to resolve allegations that they knowingly presented false claims to DOD by systematically overcharging for freight carrier services and making false statements to hide their misconduct.March 14, 2022Freight Carriers Agree to Pay $6.85 Million to Resolve Allegations of Knowingly Presenting False Claims to the Department of Defense
$6.8MDermaTran Health Solutions, LLC; Pharmacy Insurance Administrators, LLC; Legends Pharmacy; TriadRx; and the former owners of Lake Side Pharmacy agreed to pay $6,8M to resolve allegations that they violated the FCA by waiving copays, charging the government higher prices than permitted, and trading federal healthcare business with other pharmacies.
October 12, 2022DermaTran and three other pharmacies pay over $6.8 million to settle civil claims
$5.5MAmerican Senior Communities, L.L.C. agreed to pay approximately $5.5M to resolve allegations that it violated the FCA by charging Medicare directly for various therapy services provided to beneficiaries who had been placed on hospice, when those services should have already been covered by the beneficiaries’ Medicare hospice coverage.August 10, 2022U.S. Attorney’s Office Recovers Over $5.5 Million in Civil False Claims Settlement with American Senior Communities
$4.2MThe government alleges that DOCS and Sidana submitted false claims to Medicare and Medicaid for immunotherapy services that were not medically necessary, and were not directly supervised by a physician. The allegations also involve claims to Medicare and Medicaid for medically unnecessary annual re-testing of allergy patients.December 15, 2022Connecticut Physician and Urgent Care Practice Pay Over $4.2 Million to Settle False Claims Act Allegations
$4.5MNorthern Arizona Healthcare, Flagstaff Medical Center and Health First Foundation
agreed to pay a total of $4.5 million to settle allegations that a 2017 payment to FMC under the Medicaid Disproportionate Share Hospital program violated federal law. The relator
alleged that a Medicaid DSH Pool 5 payment to FMC in 2017 violated the federal prohibition against non-bona fide provider-related donations.
August 29, 2022Northern Arizona Healthcare, Flagstaff Medical Center and Health First Foundation – Northern Arizona Agree to Pay $4.5 Million to Settle False Claims Act Lawsuit
$4MPhilips North America LLC agree to pay $4.2 million to settle claims it swapped out key components of a mobile patient monitoring device that it sold to the U.S. military without recertifying the device for airworthiness, allegedly putting top government officials, first responders and the military at risk.August 31, 2022Philips To Pay $4M Over Claims It Skirted Military Testing Rule
$2.1MSHC Home Health Services of Florida, LLC and its related entities (collectively “Signature HomeNow”) paid $2.1 million to the United States government to settle claims of improperly billing the Medicare Program for home health services provided to beneficiaries living in Florida. The complaint alleged that Signature HomeNow knowingly submitted false or fraudulent claims seeking payment from the Medicare Program for home health services to Medicare beneficiaries who: (i) were not homebound; (ii) did not require certain skilled care; (iii) did not have a valid or otherwise appropriate plans of care in place; and/or (iv) did not have appropriate face-to-face encounters needed in order to be appropriately certified to receive home health services.May 5, 2022Home Health Company Operating in Florida Pays $2.1 Million to Resolve False Claims Allegations
$2MHayat Pharmacy agreed to pay approximately $2M to resolve allegations that it submitted false claims to Medicare and Medicaid in 2019 for two prescription medications and switched Medicaid and Medicare patients from lower cost medications to the iodoquinol-hydrocortisone-aloe cream and Azesco without any medical need and/or without a valid prescription.January 28, 2022Milwaukee Pharmacy Chain to Pay Over $2 Million to Resolve Allegations It Violated the False Claims Act
$1.2MPhilips RS North America LLC, formerly known as Respironics, Inc., a nationwide manufacturer of sleep and respiratory durable medical equipment, agreed to pay $1,283,825.40 to settle allegations that it unlawfully induced referrals for its equipment in violation of the False Claims Act and Anti-Kickback Statute.September 22, 2022Sleep and Respiratory Equipment Manufacturer to Pay $1.2 Million to Resolve Allegations of Unlawful Kickbacks
$930,000Comprehensive Health Services, LLC agreed to pay $930,000 to resolve allegations that it violated the False Claims Act by falsely representing to the State Department and the Air Force that it complied with contract requirements relating to the provision of medical services at State Department and Air Force facilities in Iraq and Afghanistan. The United States alleged that, between 2012 and 2019, CHS failed to disclose to the State Department that it had not consistently stored patients’ medical records on a secure EMR system.March 8, 2022Contractor Pays $930,000 to Settle False Claims Act Allegations Relating to Medical Services Contracts at State Department and Air Force Facilities in Iraq and Afghanistan
$800,000Dr. Bergman and his medical practice agreed to pay $800,000 to the US and Iowa to resolve allegations that Bergman wrongfully billed Medicare and Medicaid for services rendered by others and billed Medicare for medically unnecessary and unreasonable applications of skin substitute products.September 7, 2022Iowa Plastic Surgeon Agrees to Pay $800,000 to Resolve Allegations of Inappropriate Billing and False Claims


Whistleblower Retaliation Laws Protecting Employees of Federal Contractors and Grantees

Courageous whistleblowers that come forward to report fraud deserve robust protection against retaliation.  Below is a list of common questions about key aspects of the anti-retaliation provisions of the False Claims Act and the Defense Contractor Whistleblower Protection Act.

How does the NDAA whistleblower retaliation law protect whistleblowers at federal contractors and grantees? Expand

The False Claims Act and Sections 827 and 828 of the Defense Authorization Act (NDAA) protect whistleblowers disclosing fraud on the government and other wrongdoing. The experienced government contractor whistleblower protection lawyers at Zuckerman Law represent whistleblowers at government contractors and grantees in whistleblower retaliation claims and False Claims Act qui tam actions.

For information about the NDAA whistleblower protection law, see our Practical Law Practice Note: Whistleblower Protections Under the National Defense Authorization Act.

Click here to learn about the qui tam or whistleblower rewards provision of the False Claims Act and click here to read our FAQ about the False Claims Act whistleblower retaliation law.

Must an NDAA Whistleblower Retaliation Plaintiff Prove a Subjective Belief of a Violation? Expand

The whistleblower protection provisions of the NDAA protect the disclosure of information that the employee reasonably believes is evidence of:

  • gross mismanagement of a Federal contract or grant;
  • a gross waste of Federal funds;
  • an abuse of authority  relating to a Federal contract or grant; or
  • a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract.

In construing analogous statutory language in an ARRA retaliation case in Herrera-Castro v. Trabajamos Community Head Start, Inc., 2017 WL 666232 (Feb. 20, 2017), Judge Rakoff rejected the employer’s position that the whistleblower must prove that she subjectively believed that the conduct she complained about actually violated the statute:

Trabajamos argues, first, that Castro did not make a protected disclosure because she did not subjectively believe that the misconduct she reported violated the statute. But the statute requires no such subjective belief. Rather the statute requires only that the whistleblower “reasonably believes” that the information disclosed “is evidence of … a gross waste of covered funds.” Id. Moreover, it would thwart ARRA’s purpose-to encourage and protect reports of misconduct involving covered funds-to require laypeople to form legal conclusions concerning the misconduct they have discovered before coming within the statute’s protection.

Judge Rakoff makes an important point that a prophylactic whistleblower protection statute should not be construed to require the whistleblower to form a legal conclusion to be protected against retaliation.

What whistleblowing is protected under the False Claims Act anti-retaliation provision? Expand

The whistleblower protection provision of the False Claims Act (“FCA”), protects “lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.” 31 U.S.C. § 3730(h)(1).  False Claims Act protected whistleblowing includes:

  • internal reporting of fraudulent activity to a supervisor;
  • steps taken in furtherance of a potential or actual qui tam action; and
  • steps taken to remedy fraudulent activity or to stop an FCA violation.

FCA whistleblower protection attaches regardless of whether the whistleblower mentions the words “fraud” or “illegal.”  The employer need only be put on notice that litigation is a “reasonable possibility.” A reasonableness standard is inherently flexible and dependent on the circumstances; thus, “no magic words-such as illegal or unlawful-are necessary to place the employer on notice of protected activity.” Jamison v. Fluor Fed. Sols., LLC, 2017 WL 3215289, at *9 (N.D. Tex. July 28, 2017).

An FCA retaliation claim does not require proof of a viable underlying FCA claim.  The FCA anti-retaliation provisions “do[] not require the plaintiff to have developed a winning qui tam action”; they “only require [] that the plaintiff engage in acts [made] in furtherance of an [FCA] action.”  Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 187 (3d Cir. 2001).

And because the Supreme Court has held that the FCA “is intended to reach all types of fraud, without qualification, that might result in financial loss to the Government” and “reaches beyond ‘claims’ which might be legally enforced, to all fraudulent attempts to cause the Government to pay out sums of money,” the term “false or fraudulent claim” should be construed broadly. U.S. ex rel. Drescher v. Highmark, Inc., 305 F. Supp. 2d 451, 457 (E.D. Pa. 2004).

Does the False Claims Act protect whistleblowers against retaliation? Expand

Yes: the False Claims Act (“FCA”) protects employees, contractors, and agents who engage in protected activity from retaliation in the form of their being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment.” 31 U.S.C. § 3730(h)(1).

Protected activity or protected whistleblowing includes raising concerns to a supervisor about fraud on the government or opposing fraudulent billing practices.

For more information about the anti-retaliation provision of the False Claims Act, click here.

Is False Claims Act Whistleblower Protection Limited to Disclosures About the Whistleblower’s Employer? Expand

No.  The whistleblower protection provision of the False Claims Act (FCA) protects “lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under [the FCA] or other efforts to stop 1 or more violations of [the FCA].”

Recently the Fourth Circuit held in O’Hara v. Nika Technologies, Inc., 2017- F.3d –2017 WL 6542675 (4th Cir. Dec. 22, 2017):

The plain language of § 3730(h) reveals that the statute does not condition protection on the employment relationship between a whistleblower and the subject of his disclosures. Section 3730(h) protects a whistleblower from retaliation for “lawful acts done … in furtherance of an action under this section.” 31 U.S.C. § 3730(h)(1). The phrase “an action under this section” refers to a lawsuit under §3730(b), which in turn states that “[a] person may bring a civil action for a violation of [the FCA].” Id. § 3730(b)(1). Therefore, § 3730(h) protects lawful acts in furtherance of an FCA action. This language indicates that protection under the statute depends on the type of conduct that the whistleblower discloses-i.e., a violation of the FCA-rather than the whistleblower’s relationship to the subject of his disclosures.

Does the participation of a supervisor with knowledge of protected whistleblowing in the decision to take an adverse personnel action prove knowledge under the False Claims Act whistleblower protection provision? Expand

A recent decision denying a motion for summary judgment in a False Claims Act retaliation case highlights the broad and robust whistleblower protection afforded to employees of government contractors and grantees.

Broad Scope of Protected Whistleblowing Under the False Claims Act’s Whistleblower Protection Provision

Andrea Marbury sued her former employer Talladega College under the False Claims Act’s whistleblower protection provision, alleging that Talladega terminated her employment because she opposed requests to use Title III funds for advertising expenses (an unlawful use of Title III funds).  Talladega argued that Marbury did not engage in protected conduct under the False Claims Act because she never took any concrete steps towards bringing a qui tam action and could not point to a specific false claim that Talladega submitted to the government.

The court rejected Talladega’s narrow construction of the FCA’s whistleblower protection provision and instead found that Marbury’s internal opposition to using Title III funds for advertising and her refusal to complete requisition forms for unauthorized uses of Title III funds could qualify as protected whistleblowing.

In addition, the court rejected Talladega’s argument that Marbury cannot be deemed to have engaged in protected conduct because she failed to show that Title III funds were misapplied.  The court noted that the whistleblower protection provision of the False Claims Act does not require a showing that federal funds were actually expended for an unlawful purpose and that the whistleblower protection provision is “intended to prevent the filing of false claims and to discourage fraud.”  Had the court adopted Talladega’s argument, employees that stick their necks out to stop fraud would not be protected against reprisal.

The opinion contains a good discussion of the scope of protected conduct under the False Claims Act’s anti-retaliation provision, including the following two principles:

  • The False Claims Act whistleblower protection provision protects not only steps taken in furtherance of a potential or actual qui tam action, but also steps taken to remedy fraudulent activity or to stop an FCA violation.
  • Internal reporting of fraudulent activity to a supervisor can be a step in furtherance of uncovering fraud, and is therefore protected under the False Claims Act.

Can a False Claims Act whistleblower retaliation plaintiff obtain double back pay (two times lost wages and benefits)? Expand

Under the False Claims Act’s whistleblower protection provision, a prevailing whistleblower is entitled to “all relief necessary to make that employee, contractor, or agent whole,” which includes reinstatement, double back pay, interest on the back pay, special damages, and attorney’s fees and costs.  In Mooney, the court addressed the issue of whether the whistleblower’s back pay (lost wages and benefits that Mooney would have been paid absent the retaliation) should be reduced by the amount of her interim earnings before the back pay is doubled, or whether instead back pay should be doubled before the court applies an offset for mitigation.

Judge Block held that back pay damages should be doubled prior to subtracting any mitigation income because such an interpretation:

  • comports with congressional intent that an employee who suffered retaliation is best made whole by recovering double back pay;
  • prevents defendants from benefitting from the whistleblower’s successful mitigation efforts; and
  • prevents defendants from avoiding the double-damages provision by tendering the undoubled amount in mitigation prior to judgment. 

Are employees whose jobs require investigating fraud against the government required to meet a higher pleading standard? Expand

Whistleblower Disclosed False Billing

A recent decision from the Southern District of New York denying a motion to dismiss a False Claims Act retaliation case calls into question the viability of the heightened pleading standard for “duty speech” whistleblowing under the False Claims Act. In particular, Judge Pauley’s decision in Malanga v. NYU Lagone Med. Cir .suggests that the 2009 amendments to the False Claims Act’s anti-retaliation provision eliminates the heightened pleading standard for “fraud alert” employees or employees whose job duties entail investigating or reporting fraud.

While working at the NYU Lagone Medical Center as Director of Research for the Department of Radiation Oncology, Malanga discovered that NYU employees were unlawfully billing tests performed on blood specimens to the federal government, overcharging federal grants for patient clinic visits, and paying for the salary of a post-doctorate employee out of an unrelated federal grant. Malanga investigated these practices and disclosed to her supervisor and other NYU employees. NYU terminated Malanga’s employment, and Malanga sued under the FCA and anti-discrimination laws.

“Duty Speech” Whistleblowing Protected Under False Claims Act

NYU moved to dismiss, contending that Malanga is subject to more stringent pleading standards because she was a “fraud alert” employee whose job duties required her to address the very billing problems she raised during the course of her employment. Applying the plain meaning of the FCA, Judge Pauley rejected NYU’s “duty speech” defense:

Certain courts have held employees whose jobs require investigating fraud against the government to higher pleading standards. See, e.g., U.S. ex rel Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1523 n.7 (11th Cir. 1996)  (“[A]n individual whose job entails the investigation of fraud . . . must make clear their intentions of bringing or assisting in an FCA action in order to overcome the presumption that they are merely acting in accordance with their employment obligations.”). However, it is doubtful that those heightened pleading standards survive FERA, which was enacted “to counter perceived judicial interpretations of the protected activity prong. . . .” Layman v. MET Labs., Inc., No. 12-cv-2860, 2013 WL 2237689, at *7 (D. Md. May 20, 2013). Those decisions establishing a higher pleading standard for fraud alert employees were concerned with ensuring that the employer was on notice of an employee’s “intentions of bringing or assisting in an FCA action.” Ramseyer, 90 F.3d at 1514 n.7. Under FERA, a retaliation claim can be stated so long as the employee was engaged in efforts to stop an FCA violation, even if the employee’s actions were not necessarily in furtherance of an FCA claim. See 31 U.S.C. § 3730(h). Moreover, even if a heightened pleading standard for so-called fraud alert employees exists, Malanga alleges that as a “Director of Research,” “Defendants’ billing practices were outside the scope of Plaintiff’s job duties.” (Am. Compl. ¶¶ 29, 35.) Accepting her allegation as true, this Court cannot determine whether Malanga qualified as a “fraud alert” employee on this motion. Accordingly, Malanga has adequately pled an FCA retaliation claim.

Malanga recognizes that Congress intended to provide robust protection for employees disclosing fraud against the government.  In addition, Malanga is consistent with a trend in SOX whistleblower cases rejecting the duty speech defense.

Recently, a New York district court held that the “duty speech” defense is inapplicable to SOX claims. See Yang v. Navigators Group, Inc., 2014 WL 1870802 (S.D.N.Y. May 8, 2014). Yang worked as the chief risk officer for Navigators Group, an insurance company. Id. at *1. Yang alleged that Navigators terminated her employment for disclosing deficient risk management and control practices to her supervisor. Id. at *4.   Navigators moved to dismiss Yang’s SOX claim in part on the basis that Yang’s disclosures about “risk issues were ‘part and parcel of her job.'” Id. at *8. Judge Roman rejected the duty speech argument, relying on a 2012 district court decision holding that “whether plaintiff’s activity was required by job description is irrelevant.” Barker v. UBS AG, 888 F. Supp. 2d 291, 297 (D. Conn. 2012).

Similarly, DOJ ALJs have generally rejected the duty speech defense in SOX cases.  For example, Judge Lee Romero concluded in Deremer v. Gulfmark Offshore Inc. that “one’s job duties may broadly encompass reporting of illegal conduct, for which retaliation results” and “[t]herefore, restricting protected activity to place one’s job duties beyond the reach of the Act would be contrary to congressional intent.”  2006-SOX-2, at 59-60 (ALJ June 29, 2007). The ARB has also declined to apply the duty speech defense to SOX claims. See, e.g., Robinson v. Morgan-Stanley, Case No. 07-070, 2010 WL 348303, at *8 (ARB Jan. 10, 2010) “[Section 1514A] does not indicate that an employee’s report or complaint about a protected violation must involve actions outside the complainant’s assigned duties”).

For more information about False Claims Act whistleblower protection, see our answer to frequently asked questions about False Claims Act whistleblower protection law.

You may also be protected under the NDAA whistleblower retaliation law.  To learn about the NDAA whistleblower protection law, see our post Congress Strengthens Whistleblower Protections for Federal Employees and our Practical Law Practice Note: Whistleblower Protections Under the National Defense Authorization Act.

Are “duty speech” disclosures protected under the False Claims Act? Expand

A recent decision from the Southern District of New York denying a motion to dismiss a False Claims Act retaliation case calls into question the viability of the heightened pleading standard for “duty speech” whistleblowing under the False Claims Act. In particular, Judge Pauley’s decision in Malanga v. NYU Lagone Med. Cir .suggests that the 2009 amendments to the False Claims Act’s anti-retaliation provision eliminates the heightened pleading standard for “fraud alert” employees or employees whose job duties entail investigating or reporting fraud.

While working at the NYU Lagone Medical Center as Director of Research for the Department of Radiation Oncology, Malanga discovered that NYU employees were unlawfully billing tests performed on blood specimens to the federal government, overcharging federal grants for patient clinic visits, and paying for the salary of a post-doctorate employee out of an unrelated federal grant. Malanga investigated these practices and disclosed to her supervisor and other NYU employees. NYU terminated Malanga’s employment, and Malanga sued under the FCA and anti-discrimination laws.

Can False Claims Act whistleblowers use confidential documents to report fraud to the government? Expand

In a False Claims Act case in which the relators allege that Mount Sinai Hospital and affiliated entities committed improper billing and wrongful payment retention misconduct, Judge Berman of the United States District Court for the Southern District of New York held that the realtors could use confidential patient records as the basis for their qui tam action.  The decision is available here.

In a motion to dismiss, the defendants asserted that the relators “may not rely on improperly obtained confidential patient records as the basis for their complaint.” Judge Berman rejected defendant’s request for preclusion of the patient records, holding that

there is strong public policy in favor of protecting those who report fraud against the government. See U.S. ex rel. Ruhe v. Masimo Corp., 929 F. Supp. 2d 1033, 1039 (C.D. Cal. 2012) (where relators “sought to expose a fraud against the government and limited [obtaining] documents relevant to the alleged fraud … this taking and publication was not wrongful, even in light of nondisclosure agreements, given ‘the strong public policy in favor of protecting whistleblowers who report fraud against the government.”‘) (citing U.S. ex rel. Grandeau v. Cancer Treatment Ctrs. of Am., 350 F. Supp. 2d 765, 773 (N.D. Ill. 2004) (“Relator and the government argue that the confidentiality agreement cannot trump the FCA’s strong policy of protecting whistleblowers who report fraud against the government.”)).

Judge Berman also noted the relators’ contention that HIPPA “carves out an exception that allows ‘whistleblowers’ to reveal such information to governmental authorities and private counsel, provided that they have a good faith belief their employer engaged in unlawful conduct.”  The relators are represented by McInnis Law.

As Medicare fraud is estimated to cost taxpayers $60 billion to $90 billion each year, it is critical that the courts do not permit health care providers to use confidentiality agreements to immunize themselves from FCA liability. If confidentiality agreements were deemed to trump the FCA, then the government would lose its most effective tool in combatting health care fraud.

Nevertheless, whistleblowers should seek counsel before using confidential information to bring a whistleblower claim. And whistleblowers should avoid gathering evidence unlawfully and consider taking appropriate measures to protect certain confidential information, such as filing a redacted complaint that does not disclose patient names.

What is the purpose of the False Claims Act whistleblower protection provision? Expand

The whistleblower protection provision of the False Claims Act encourages private citizens to act as whistleblowers when they suspect fraud on the government.  The False Claims Act anti-retaliation provision protects both whistleblowing to the government and internal whistleblowing.  Retaliation can derail a whistleblower’s career and cause a whistleblower to suffer economic losses, emotional distress, reputational harm, and alienation.

As Congress recognized when it strengthened the qui tam provisions of the False Claims Act, “few individuals will expose fraud if they fear their disclosures will lead to harassment, demotion, loss of employment, or any other form of retaliation” and therefore the FCA “seeks to halt companies and individuals from using the threat of economic retaliation to silence whistleblowers, as well as assure those who may be considering exposing fraud that they are legally protected from retaliatory acts.” S. Rep. No. 99-345, at 34 (1986).

That is why the FCA provides a wide range of damages, including uncapped compensatory damages and double back pay (double lost wages).  Courts can also award prevailing FCA whistleblowers front pay for lost future income.  And other federal and state whistleblower protection laws may provide additional remedies, including punitive damages.

Does the False Claims Act protect a whistleblower who refuses to violate the Act? Expand

The Second Circuit’s decision in Fabula v. American Medical Response, Inc. establishes that refusal to play a role in an unlawful scheme to defraud the government is protected under the whistleblower protection provision of the False Claims Act. In particular, refusal to falsify documentation about medical services so as to hinder the filing of a fraudulent claim for reimbursement in violation of the FCA constitutes FCA protected activity.

Fabula worked as an EMT at American Medical Response, Inc. (AMR) providing emergency and non-emergency medical transport services, some of which were reimbursable under Medicare.  He alleged that AMR defrauded Medicare by falsely certifying ambulance transports as medically necessary and submitting claims that it knew were not properly reimbursable under Medicare reimbursement rules.

Where means of transportation other than an ambulance can be used without endangering the patient’s health, Medicare does not pay for ambulance transport. And to secure Medicare reimbursement, AMR was required to submit accurate information about the condition of patients and medical services that it provided to them.  In particular, the EMT had to fill out an electronic Patient Care Report (“PCR”).  The PCR includes a description of the transported person’s condition, which determines whether a transport qualifies as “medically necessary.”

Fabula alleged that AMR required EMTs to revise or recreate PCRs “to include false statements purportedly demonstrating medical necessity to ensure that runs would be reimbursable by Medicare, whether or not ambulance service was in fact medically necessary in the particular case.”  He knew that the falsified PCRs would be used to qualify for Medicare reimbursement.  Some of the examples of PCRs that AMR managers ordered him to falsify are stark:

  • About two weeks after transporting patients to the hospital, “Fabula was asked to revise four of the PCRs by adding information about the patients’ previous surgeries and injuries, implying that such history made ambulance service medically necessary, even though one patient with a chronic allergy issue had no medical need for an ambulance but wanted a ride to the hospital because she thought she could avoid a wait at the hospital if she was brought in by an ambulance, and another patient called for an ambulance only because he felt that he should not have to buy his own cough syrup.”
  • In December 2011, Fabula and another EMT “assisted in transporting an obese patient who “had no medical reason to be sent to the hospital, he simply wanted to go there.” The patient was able to walk himself to the stretcher and climb on unassisted. An AMR supervisor instructed Fabula to insert information about the patient’s previous surgeries to justify his transport to the hospital. That same patient called 911 six dozen times during 2011 for an ambulance to bring him to a medical facility to obtain insulin. AMR directed Fabula, under threat of being placed on unpaid leave, to state falsely in the PCRs for those runs that the patient had difficulty remaining in an upright position.”

Fabula refused to falsify PCRs and was warned that failure to alter the PCR would result in his termination.  Shortly after he refused to revise a particular PCR, AMR terminated his employment.

He brought suit under the False Claims Act and the district court dismissed his retaliation claim on the ground that “mere refusal to complete the PCR, without other affirmative acts to stop the alleged fraud, is not protected activity.”

What laws prohibit defense contractors from retaliating against whistleblowers? Expand

The anti-retaliation provision of the False Claims Act provides robust protection to any employee, contractor, or agent who suffers retaliation “because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.”  31 U.S.C. § 3730(h).

The False Claims Act whistleblower protection provision protects not only individuals who bring qui tam actions, but also individuals who take steps to expose fraud, including investigating a potential qui tam action or supplying information that could prompt an investigation.

A whistleblower who prevails in an FCA whistleblower retaliation action can recover:

  • reinstatement;
  • double back pay, plus interest;  and
  • special damages, which include litigation costs, reasonable attorney’s fees, emotional distress, and other non-economic harm from the retaliation.

Experienced Washington DC False Claims Act Qui Tam Whistleblower Attorneys Representing Whistleblowers Nationwide

The experienced whistleblower attorneys at leading whistleblower law firm Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees.  To schedule a confidential consultation, click here or call us at 202-262-8959.

Our experience includes:

  • Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.
  • Litigating False Claims Act retaliation cases.
  • Representing qui tam relators in False Claims Act cases.
  • Representing whistleblowers disclosing fraud on the government in Congressional investigations.
  • Training judges, senior Office of Inspector General officials, and federal law enforcement about whistleblower protections.

In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon.  Two of the attorneys on our team served in senior positions at the U.S. Office of Special Counsel overseeing investigations of whistleblower retaliation claims and whistleblower disclosures.

Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on the implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations, including a matter resulting in the removal of an Inspector General.

Before hiring a lawyer for a high-stakes whistleblower case, assess the lawyer’s reputation, prior experience representing whistleblowers, knowledge of whistleblower laws and prior results.  And consider the experience of other whistleblowers working with that attorney.  See our client testimonials by clicking here.

Zuckerman Law has written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:

Whistleblower Bounties

Whistleblower Protections for Employees of Federal Contractors and Grantees

Whistleblower Protections Under the National Defense Authorization Act (w-008-5821)


best sec whistleblower lawyer

SEC whistleblower rules