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False Claims Act Retaliation Decision Underscores Broad Scope of FCA Whistleblower Protection

False Claims Act Whistleblower Retaliation

A recent decision in Mikhaeil v. Walgreens Inc., a False Claims Act retaliation case, establishes helpful precedent on the broad scope of False Claims Act protected conduct.

Mikhaeil had worked as a staff pharmacist at Walgreens in July 2012 and alleged that her employment was terminated for raising concerns about potential Medicare fraud. Walgreens moved for summary judgment, and in opinion denying the motion in part, Judge Edmunds held that the False Claims Act protects lawful acts taken in furtherance of an action under the FCA, and also protects “employees from being fired for undertaking other efforts to stop violations of the Act, such as reporting suspected misconduct to internal supervisors.” Mikhaeil testified that she told her supervisor the relevant prescription numbers that she was concerned about, and therefore her disclosure about potential Medicare fraud was sufficiently specific to constitute an internal report alleging fraud on the government.

Whistleblowing in the Course of Performing Job Duties is Protected Under False Claims Whistleblower Retaliation Law

Judge Emunds also rejected Walgreen’s “duty speech” argument, i.e., Walgreen’s contention that Mikhaeil’s internal disclosure failed to provide notice of a potential FCA claim because her job duties already required her to alert the company to potential false-claims liability:

As stated previously, the FCA no longer requires that conduct be “in furtherance of an action under this section” to be protected. Rather, the FCA protects any “effort to stop 1 or more violations of this subsection.” 31 U.S.C. 3730(h)(1). This includes internal reporting to supervisors “whether or not such steps are clearly in furtherance of a potential or actual qui tam action.” 155 Cong Rec. E1295-03, at E1300. If an employee does not need to take steps clearly in furtherance of a potential or actual qui tam action to engage in protected activity, the employee, even if charged with investigating potential fraud, also does not need to “make clear their intentions of bringing or assisting in an FCA action,” Yuhasz, 341 F.3d at 568, to satisfy the notice requirement. See Jones-McNamara v. Holzer Health Sys., Inc., No. 13-616, 2014 WL 1671495, at *4 (S.D. Ohio Apr. 28, 2014) (“What does not remain correct in regard to the May 2009 version of the statutory scheme is Yuhasz‘s requirement that the employer knew that the employee was doing more than her job by bringing or furthering an FCA case.”); Manfield v. Alutiiq Int’l Solutions, Inc., 851 F. Supp. 2d 196, 204 (D. Me. 2012) (“Since a plaintiff now engages in protected conduct whenever he engages in an effort to stop an FCA violation, the act of internal reporting itself suffices as both the effort to stop the FCA violation and the notice to the employer that the employee is engaging in protected activity.”). By reporting her concerns directly to Yadmark, Plaintiff satisfied the notice element of her prima facie case.

Mikhaeil underscores the broad scope of protected conduct under the False Claims Act’s whistleblower protection provision.

Experienced False Claims Act Whistleblower Retaliation Lawyers

best sexual harassment attorneys Washington DC Maryland VirginiaThe 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 free preliminary 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 position at the U.S. Office of Special Counsel overseeing investigations of whistleblower retaliation claims and whistleblower disclosures.

  • Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs.  During Bachman’s tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.
  • Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on 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.

  • U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.
  • Both Eric Bachman and Jason Zuckerman served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protections.
  • Firm Principal Jason Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law.  is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.
  • Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases.  His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain.  Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.
  • The firm has published extensively on whistleblower rights and protections, and speaks nationwide at seminars and continuing legal education conferences.  We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Blog.
  • The firm is routinely quoted in the media about whistleblower rights and protections.

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

Guide to NDAA Whistleblower Protection Law

For more information about whistleblower protections for employees of government contractors and grantees, including Department of Defense contractors, see our Practical Law Practice Note titled Whistleblower Protections Under the National Defense Authorization Act. This Practice Note surveys the legal protections for employees of federal contractors, subcontractors, and grantees that receive federal funds who report waste, fraud, or abuse involving federal funds, a violation of law, rule, or regulation related to a federal contract, or a substantial and specific danger to public health or safety.

In addition, the outline explains the procedures that govern the filing, investigation and adjudication of National Defense Authorization Act (NDAA) whistleblower retaliation claims.

Topics covered include:

  • Protected whistleblowing under the NDAA.
  • The scope of coverage of the NDAA’s whistleblower protection provisions.
  • The reasonable belief standard governing NDAA protected whistleblowing.
  • Proving “contributing factor” causation
  • The same-decision affirmative defense
  • Remedies or damages available to prevailing NDAA whistleblowers.

Sarbanes-Oxley Whistleblower Protection Lawyers

The whistleblower protection provision of the Sarbanes-Oxley Act provides robust protection to corporate whistleblowers, and indeed some SOX whistleblowers have achieved substantial recoveries.  Earlier this year, a former in-house counsel at a biotechnology company recovered $11 million in a SOX whistleblower retaliation case alleging that the company fired him for disclosing violations of the Foreign Corrupt Practices Act.

On the fifteenth anniversary of SOX, leading whistleblower law firm Zuckerman Law released a free guide to the SOX whistleblower protection law: “Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.”  The guide summarizes SOX whistleblower protections and offers concrete tips for corporate whistleblowers based on lessons learned during years of litigating SOX whistleblower cases.

SOX whistleblower protection

The goal of the guide is to arm corporate whistleblowers with the knowledge to effectively combat whistleblower retaliation, avoid the pitfalls that can weaken a SOX whistleblower case, and formulate an effective strategy to obtain the maximum recovery.

 

whistleblower protection laws

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.