If you are considering a whistleblower lawsuit, you may be concerned by the prospect of taking on a large, multi-national conglomerate as an individual plaintiff. You may also be thinking that you might not have understood what you saw, or that your allegations will prove unfounded. In extreme cases, you may even be fearful of losing your job or facing threats by the alleged perpetrators of fraud (both of which are illegal).
As experienced practitioners of False Claims Act and whistleblower lawsuits, we are familiar with these concerns and will use our arsenal of experience, knowledge, and client-centric representation to put you at ease. One way to combat the defendant in a False Claims Act case is to anticipate their likely defenses against allegations of fraud, which often include the following:
#4: Problems with pleadings: In this defense, the defendant is not actually defending itself on the merits of the whistleblower’s allegations. Instead, it is attacking the whistleblower from a procedural standpoint, relying on the various tenets of the Federal Rules of Civil Procedure – namely, Rule 9(b). In this defense, the defendant may allege that the plaintiff has not set forth sufficient evidence of fraud to support a claim. And, in some jurisdictions, the court may allow the plaintiff to amend his complaint – or may dismiss the lawsuit altogether.
#3: Public information: The False Claims Act requires that a plaintiff’s allegations are based on information that is not considered public knowledge. Most often, this defense is raised if the facts of the plaintiff’s complaint were asserted in a prior lawsuit, or were revealed by the news media for some reason. However, a plaintiff can combat this defense by showing that the facts of his case are distinguishable from the facts disseminated publicly, and that he did not rely on those facts when preparing his own False Claims Act lawsuit.
#2: Statute of limitations: The statute of limitations on a False Claims Act lawsuit is just six years from the date the alleged fraud occurred – or, three years from the date material facts are known (or should have been discovered). If a plaintiff alleges fraud occurring beyond the six-year deadline, there is a strong likelihood the defendant will assert that the statute of limitations has passed and the claim is considered waived.
#1: Accident or negligence: The False Claims Act only addresses reckless or intentional acts of fraud against the government. In other words, accidents, oversights, or negligence are not considered actionable under the Act, and a defendant will often invoke this defense to avoid exposure to liability. In the healthcare field, for instance, defendants will often claim that the alleged fraud occurred as a result of a computer glitch or error in the accounting system and no intentional conduct actually took place. However, a plaintiff may be able to overcome this assertion by, as one example, pointing to written communication between the parties showing that the defendant was made aware of the problem and did not take steps to remedy the issue.
Contact Berger Montague today
If you are considering a whistleblower lawsuit and would like to discuss your information with a confidential whistleblower attorney, please do not hesitate to contact Berger Montague today.