The eighteenth-century philosopher, Edmund Burke, long ago cautioned that, “All that is necessary for the triumph of evil is that good people do nothing.” That admonition still holds true today. Whistleblowing involves individuals willing to come forward to stop fraud and other wrongdoing against the government (and by extension, the taxpayers). Those individuals who come forward are known as whistleblowers.
Whistleblowers and the Federal False Claims Act
The FCA, 31 U.S.C. §§ 3729-3733, which was originally enacted in 1863 by President Abraham Lincoln, has often been referred to as the “Lincoln Law.” That law was originally designed to redress the unscrupulous acts of government contractors during the American Civil War who provided deficient goods and services to the Union Army.
The FCA provides for both criminal and civil liability and allows any person to bring a so-called qui tam case in the name of the United States to recover civil penalties and forfeitures. Qui tam refers to the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning “[he] who sues in this matter for the king as well as for himself.” In other words, the “qui tam” provisions enlist members of the public, known as relators, to actively pursue recoveries for fraud by bringing a lawsuit on behalf of the Government.
Among other things, those who violate the FCA may be liable to pay treble (or triple) damages. The whistleblowing relators may then share in a portion of those recoveries. Specifically, in a case where the government decides to “intervene” by joining and participating in the litigation, the relator may receive a reward of 15 percent to 25 percent of what the government recovers. In cases where the government declines to intervene in the qui tam lawsuit, the relator may be entitled to an even larger reward, of 25 percent to 30 percent of the recovery that the government receives.
False Claims Act Recoveries
Since 1986, when Congress substantially strengthened the FCA, the U.S. Department of Justice (“DOJ”) has reportedly recovered more than $59 billion in settlements and judgments from civil cases involving fraud and false claims against the government.
For fiscal year 2017 alone, recoveries totaled more than $2.8 billion. Of that, $2.5 billion involved the healthcare industry, including drug and medical device manufacturers, managed care providers, hospitals, pharmacies, hospice organizations, laboratories, and physicians. According to the DOJ, this is the ninth consecutive year that the Department’s civil healthcare fraud settlements and judgments have exceeded $2 billion. The recoveries included in the $2.5 billion reflect only federal losses but, in many of these cases, the Department was instrumental in recovering additional millions of dollars for state Medicaid programs.
In addition to the claims under the False Claims Act that may be pursued by the Department of Justice, other governmental agencies also allow for whistleblower claims that provide rewards for the whistleblower, including the SEC (Securities and Exchange Commission), the IRS (Internal Revenue Service) and the CFTC (Commodity Futures Trading Commission). In those cases, the reward is a percentage of the amount recovered by the government and varies by the type of case and other factors.
Albert Einstein once observed that, “The World is a dangerous place, not because of those who do evil, but because of those who look on and do nothing.” However, the FCA allows courageous men and woman to come forward for justice in confronting and halting fraud and provides those persons with a reward for doing so.
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