Warning regarding litigation under the False Claims Act
The False Claims Act has one of the strongest whistleblower protection provisions in the United States. However, it has many complicated components and requirements which can harm any person that pursues such a claim without counsel. Due to the potential for a significant financial recovery, it is usually possible to retain an attorney for such an action. If, after reviewing this section, you believe that you may have an action arising under the False Claims Act and need an attorney, please complete our Attorney Referral Service / Report Fraud Now form.
What is the False Claims Act (Qui tam)?
The False Claims Act is 31 U.S.C. Sections 3729 through 3733. Qui tam, under the False Claims Act, allows persons and entities with evidence of fraud against federal programs or contracts to sue the wrongdoer on behalf of the United States Government. In Qui tam actions, the government has the right to intervene and join the action. If the government declines, the private plaintiff may proceed on his or her own. Some states have passed similar laws concerning fraud in state government contracts.
What Actions Are Considered Violations under the False Claims Act?
- Knowingly presenting (or causing to be presented) to the federal government a false or fraudulent claim for payment
- Knowingly using (or causing to be used) a false record or statement to get a claim paid by the federal government
- Conspiring with others to get a false or fraudulent claim paid by the federal government
- Knowingly using (or causing to be used) a false record or statement to conceal, avoid, or decrease an obligation to pay money or transmit property to the federal government.
Who Can File a Qui tam Action?
Any persons or entities with evidence of fraud against federal programs or contracts may file a Qui tam lawsuit. If the government or a private party has already filed a False Claims Act lawsuit based on the same evidence as you, you cannot bring a lawsuit.
Where Should a Qui tam Action Be Filed?
A qui tam action must be confidentially filed under seal in federal district court in accordance with the Federal Rules of Civil Procedure. A copy of the complaint, with a written disclosure statement of substantially all material evidence and information in the plaintiff’s possession, must be confidentially served on the U.S. Attorney General and the U.S. Attorney for the district in which the complaint is brought. An action under the False Claims Act must be filed, in camera and under seal. The complaint and its contents must be kept confidential until the seal is lifted. The complaint is not served on the defendant. If the plaintiff violates the provisions of the seal, his or her complaint could be dismissed.
What Are the Civil Penalties Under the False Claims Act?
Violators of the False Claims Act are liable for three times the dollar amount that the government is defrauded and civil penalties of $5,000 to $10,000 for each false claim.
A qui tam plaintiff can receive between 15 and 30 percent of the total recovery from the defendant, whether through a favorable judgment or settlement. To be eligible to recover money under the Act, you must file a qui tam lawsuit. Merely informing the government about the violation is not enough. You only receive an award if, and after, the government recovers money from the defendant as a result of your suit.
What Are the Statutes Of Limitations for Filing a Qui Tam Lawsuit?
Under the False Claims Act, an action must be filed within the later of the following two time periods:
- Six years from the date of the violation of the Act; or
- Three years after the government knows or should have known about the violation, but in no event longer than ten years after the violation of the Act.
(One Circuit Court has interpreted the second provision as requiring that the action be filed not later than three years after the qui tam plaintiff rather than the government knows, or should have known about the violation.)
What Are the Whistleblower Protection Provisions in the False Claims Act?
Under Section 3730(h) of the False Claims Act, any employee who is discharged, demoted, harassed, or otherwise discriminated against because of lawful acts by the employee in furtherance of an action under the Act is entitled to all relief necessary to make the employee whole. Such relief may include:
- Double back pay
- Compensation for any special damages including litigation costs and reasonable attorneys’ fees.
You should be aware, however, that the scope of whistleblower protection under Section 3730(h) is an issue that currently divides the courts.
Many states have wrongful discharge or other employment laws that may provide other remedies for such discrimination.
The Statute of Limitation for filing a FCA retaliation case is different then that for filing a qui tam recovery case. Retaliation case must be filed under the statute of limitation applicable to the similar state wrongful discharge action.
What about State False Claims Acts?
Due to the success of the Federal False Claims Act, a growing number of states including New York, California, and Virginia, have enacted State versions of the False Claims Act. These laws permit whistleblowers to recover a “finders fee” for reporting fraud in state, local and municipal contracting.
What about Tax Fraud?
In 2006, Congress amended the Internal Revenue Code to permit whistleblower to obtain a reward for reporting tax fraud.
How can I get help?
If you need to speak to an attorney, you can contact us using the NWLDEF’s Attorney Referral Service / Report Fraud Now form.