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Federal False Claims Act and Qui Tam Litigation.
Description: In recent years, whistleblower lawsuits have led to billions of dollars in judgments and settlements,
debarment from government contracts, and criminal prosecutions as the government and the public seek to root out fraud and abuse. In 2010, the Dodd-Frank Act created a new Securities and Exchange Commission Whistleblower Program, imposed a three-year statute of limitations on FCA retaliation actions, and
expanded protections for whistleblowers.
Federal False Claims Act and Qui Tam Litigation is a unique guide to this vital area. Unlike many treatises that focus solely on the plaintiff whistleblower or “relator,” this book provides detailed, comprehensive coverage of the interests of all the participants in qui tam cases—the relator, the defendant corporation, the federal and state governments, and the courts. It also provides state-of-the-art analysis of the latest cases and whistleblower statutes, federal, state and municipal.
Topics include: evaluating the merits of a potential action; determining whether the relator would be barred or restricted from any recovery for retaliation; for plaintiffs, locating a favorable judiciary and an aggressive prosecutor's office; for defendants, anticipating, preventing and responding to litigation; determining whether a claim is material; theories of liability under the FCA; government indifference or concurrence with erroneous certification; assessing an appropriate relator's share of any recovery; parallel criminal actions; and more.
Each chapter concludes with detailed analysis of the strengths and weaknesses of significant cases for the relator, the defense, the government and the judiciary. This is a book that will help all parties understand and master the challenges of this important and growing field.
Includes a CD-ROM containing forms and pleadings; guidances and government memoranda; U.S statements of interest; and federal and state statutes and forms.
Contents: CHAPTER 1
Scope and Introduction - 1.01 Introduction
- 1.02 Significant Monetary Recoveries in Civil and Criminal Actions - 1.03 Debarment under the FCA
- 1.04 Criminal Imprisonment - 1.05 Penalties
- 1.06 Relator's Recovery CHAPTER 2
History of the False Claims Act - 2.01 An Overview of the FCA
- 2.02 A Historical Perspective of the Informer's Role - 2.03 Why History Is Important
- 2.04 Lincoln's Law [1] The Statute [2] Why It Passed [3] Mens Rea
[4] Penalties and Damages [5] Relator Recovery [6] Statute of Limitations [7] Burden of Proof - 2.05 1943 Amendments [1] The Statute [2] Why It Passed [3] Mens Rea [4] Statutory Amendments - 2.06 1986 Amendments
[1] The Statute [2] Why It Passed [3] Mens Rea [4] Statutory Amendments - 2.07 2009 FERA Amendments [1] The Statute [2] Why It Passed [3] Statutory Amendments CHAPTER 3
What Constitutes a Claim - 3.01 Introduction - 3.02 Types of “Claims” [1] Direct False Claim Theory [2] False Certification Theory [3] Promissory Fraud - 3.03 Materiality [1] “Natural Tendency” [2] “Actual Effect”
[3] Unresolved Materiality Standard - 3.04 Perspectives [1] Relator Perspective [2] Defendant Perspective [3] Government Perspective [4] Judicial Perspective [5] Current Thoughts CHAPTER 4 Substantive Violations
- 4.01 Mens Rea and Required Proof [1] Knowingly
[2] False or Fraudulent
- 4.02 Government Knowledge Defense - 4.03 Theories of Liability
[1] Presents a False Claim: Section 3729(a)(1) [2] Use of a False Record: Section 3729(a)(2) [3] Conspiracy: Section 3729(a)(3)
[4] Delivery of Less Property: Section 3729(a)(4) [5] False Receipts: Section 3729(a)(5)
[6] False Purchase: Section 3729(a)(6) [7] Reverse False Claims: Section 3729(a)(7) - 4.04 Perspectives [1] Relator Perspective [2] Defendant Perspective [3] Government Perspective [4] Judicial Perspective [5] Current Thoughts CHAPTER 5
Healthcare Fraud Cases Under the FCA - 5.01 Introduction
- 5.02 Fraudulent Billing [1] Treatment Issues
[2] Misrepresentation of Credentials
[3] Upcoding or Improper Coding of Goods and Services [4] Bundling and Unbundling Procedures
[5] Misrepresentation of Patient Population Data - 5.03 Anti-Kickbacks and Self-Referrals
[1] Anti-Kickback Statute [2] Self-Referrals - 5.04 Best Price
[1] Definition of Best Price [2] Key Players
[3] Calculation of “Best Price”
[4] The Role of “Best Price” in Defrauding the Government [5] New Best Price Calculations
- 5.05 Best Value: Capital Medical Equipment [1] Background
[2] Manufacturer's Failure to Provide Accurate Pricing Information [3] Manufacturer's Fraud Involving the Coding and Configurations System - 5.06 Off-Label Marketing
[1] Medicare and Medicaid Off-Label Drug Reimbursement [2] FDA Regulation of Prescription Drugs
[3] Misbranding of Prescription Drugs
[4] FDA Regulation of Manufacturers' Marketing of Prescription Drugs - 5.07 Submission of Claims for Defective Medical Devices
[1] Federal and State Laws Require Medical Devices to Be Safe, Reliable, and Effective
[2] Defective Medical Equipment Fraudulently Inflates Medicare and Other Federal- and State-Funded Health Program Reimbursements - 5.08 Perspectives [1] Relator Perspective [2] Defendant Perspective [3] Government Perspective [4] Judicial Perspective [5] Current Thoughts CHAPTER 6
Other Kinds of Fraud Cases Under the FCA - 6.01 Government Procurement Fraud [1] Generally
[2] Defense Industry
- 6.02 Environmental Regulation
[1] Problems in Enforcing Environmental Regulations and Private Lawsuit Limitations [2] Government Contract Fraud and Environmental Law Violations
- 6.03 Financial Services Industry - 6.04 Oil, Gas, and Mining - 6.05 Scientific Research - 6.06 Education Fraud - 6.07 Perspectives [1] Relator Perspective [2] Defendant Perspective [3] Government Perspective [4] Judicial Perspective [5] Current Thoughts CHAPTER 7
Protection from Retaliation
- 7.01 Overview of a Cause of Action - 7.02 “Any Employee” Defined
[1] Employees Responsible for Investigating Fraud [2] Independent Contractors
[3] Federal Government Employees [4] State Government Employees [5] Local Government Employees - 7.03 “Discriminated Against” Defined - 7.04 “Employer” Defined
[1] General Construction of “Employer” [2] Corporate Shield Exception
[3] Government Employers
- 7.05 Protected Activity: Lawful Actions “in Furtherance of” an FCA Claim [1] Relator Engaged in Protected Activity: Circuit Court Views
[2] Relator Did Not Engage in Protected Activity
[3] Shifting Burdens Once a Prima Facie Case for Retaliation Is Made - 7.06 Employer Knowledge Prerequisite
[1] Two-Pronged Approach
- 7.07 Damages [1] Double Back Pay [2] Other Damages
- 7.08 Preliminary Injunctive Relief - 7.09 Statute of Limitations - 7.10 Perspectives [1] Relator Perspective [2] Defendant Perspective [3] Government Perspective [4] Judicial Perspective [5] Current Thoughts CHAPTER 8
Jurisdiction, Venue, and Other Threshold Issues - 8.01 Jurisdiction and Venue Generally
- 8.02 Federal Court Proceedings [1] Personal Jurisdiction
[2] Subject Matter Jurisdiction
[3] Supplemental Jurisdiction over State Law Claims - 8.03 Multidistrict Litigation
- 8.04 State Court Jurisdiction - 8.05 Concurrent Proceedings [1] Criminal
[2] Bankruptcy
[3] Federal Agency Proceedings - 8.06 Venue
[1] District Court Venue [2] Alien Venue Act [3] Transfer of Venue [4] Curing Defective Venue [5] Forum Non Conveniens - 8.07 Other Threshold Issues [1] Service of Process
[1A] Statute of Limitations [2] Laches
[3] Joinder
[4] Alternative Dispute Resolution Procedures [5] Dual Representation
[6] Who Can Be a Relator? - 8.08 Perspectives [1] Relator Perspective [2] Defendant Perspective [3] Government Perspective [4] Judicial Perspective [5] Current Thoughts CHAPTER 9
Pretrial Procedures, Discovery, and Appeals - 9.01 Preparing the Disclosure Statement - 9.02 Filing the Complaint
[1] Generally
[2] Consequences of Governmental Intervention [3] Consequences of Nonintervention
- 9.03 Pleadings
[1] Applicability of Rules 8 and 9(b) to the False Claims Act [2] Subject Matter Jurisdiction
[3] Amending the Complaint [4] Counterclaims
[5] Preliminary Injunctions - 9.04 Discovery
[1] Generally
[2] Discovery Prior to Unsealing the Case [3] Discovery After Unsealing Case
[4] Privileges [5] Touhy Regulations - 9.05 Timeliness of Appeals - 9.06 Perspectives [1] Relator Perspective [2] Defendant Perspective [3] Government Perspective [4] Judicial Perspective [5] Current Thoughts CHAPTER 10
Pitfalls of Filing Suit
- 10.01 Tax Bar: 31 U.S.C. - 3729(e)
- 10.02 First to File Rule: 31 U.S.C. - 3730(b)(5)
- 10.03 Members of Armed Forces: 31 U.S.C. - 3730(e)(1)
- 10.04 Members of Legislative, Judiciary, or Executive Branches: 31 U.S.C. - 3730(e)(2) - 10.05 Pending Governmental Proceedings: 31 U.S.C. - 3730(e)(3)
- 10.06 Public Disclosure Bar: 31 U.S.C. - 3730(e)(4)
[1] Have Allegations or Transaction Been Publicly Disclosed?
[2] Is the Qui Tam Action “Based Upon” Publicly Disclosed Allegations or Transactions? - 10.07 Is the Relator the Original Source? 31 U.S.C. - 3730(e)(4)(B)
[1] Direct and Independent Knowledge [2] Voluntarily Provided the Information [3] Additional Requirements
[4] Allegations in the Complaint
[5] Can Multiple Relators Be Original Sources? [6] The Effect of Government Intervention - 10.08 Pre-Filing and Post-Filing Release Bar - 10.09 Constitutional Concerns
[1] Standing
[2] Eleventh Amendment [3] Take Care Clause [4] Appointments Clause [5] Other Constitutional Issues - 10.10 Perspectives [1] Relator Perspective [2] Defendant Perspective [3] Government Perspective [4] Judicial Perspective [5] Current Thoughts CHAPTER 11
FCA Damages and Penalties
- 11.01 Damages in False Claims Cases Generally - 11.02 Damages for Mischarge and Overcharge Cases
- 11.03 Variations of Mischarge and Overcharge Damage Models in Substandard Product and Services Cases [1] Benefit of the Bargain
[2] Out of Pocket
[3] Repair and Replacement Costs [4] Entire Amount Expended [5] Government Utilization [6] Failure to Test
- 11.04 Damages in False Negotiation Cases [1] Bid Rigging Cases
[2] Defective Pricing Cases
[3] Damages in Medicare and Medicaid Kickback Cases [4] Damages in Fraud in the Inducement Cases
[5] Equitable Issues: Void and Voidable Contracts in False Negotiation Cases - 11.05 Damages in False Certification Cases
[1] Actual Loss Test [2] But For Test
[3] Reduction for Amounts Reimbursed or Otherwise Paid to the Government - 11.06 Reverse False Claim Cases
- 11.07 Additional Damages
[1] Recovery of Consequential Damages [2] Indirect Damage Elements
- 11.08 Proving Damages
- 11.09 Reduction of Damages for Voluntary Disclosure; Reduction of the Multiplier - 11.09 A Freezing Assets Through Preliminary Injunctions
- 11.10 Penalties Under the FCA [1] The General Rule
[2] Determining the Number of Penalties [3] Determining the Level of Penalties
- 11.11 Constitutional Issues Relating to Damages and Penalties [1] Double Jeopardy
[2] Excessive Fines
- 11.12 Tax Deductibility of Judgments - 11.13 Perspectives [1] Relator Perspective [2] Defendant Perspective [3] Government Perspective [4] Judicial Perspective [5] Current Thoughts CHAPTER 12
Defending and Preventing Suit - 12.01 Introduction
- 12.02 Initial Defensive Considerations and Strategies [1] Selecting Counsel
[2] Anticipating Qui Tam Suits
- 12.03 Conducting an Internal Investigation [1] Overview
[2] Procedures for Internal Investigations - 12.04 The Government's Intervention Decision - 12.05 Pretrial Strategies
[1] Motions to Dismiss and for Summary Judgment [2] Discovery Issues
[3] Counterclaims
- 12.06 Parallel Issues in Criminal and Civil Cases [1] Search Warrants
[2] Grand Jury Subpoenas [3] Stays of Litigation [4] Government Interviews
- 12.07 Civil and Criminal Corporate Liability [1] Vicarious Liability
[2] Doctrine of Collective Knowledge [3] Successor Liability
- 12.08 Preventing Qui Tam Suits
[1] Organizational Compliance and Ethics Programs
[2] Department of Justice Guidelines on Corporate Compliance [3] Other Compliance Issues
- 12.09 Perspectives [1] Relator Perspective [2] Defendant Perspective [3] Government Perspective [4] Judicial Perspective [5] Current Thoughts CHAPTER 13
Settlement, Attorney's Fees, Relator Share, and Dismissal
- 13.01 Statutory Settlement Requirements: The Rights of Government and the Relator to Object [1] Settlement Must Be “Fair, Adequate, and Reasonable”
[2] Relator's Right to Object When Government Intervenes
[3] Government's Right to Object if There Was No Previous Intervention - 13.02 Calculating the Relator's Share
[2] Impact of Government Intervention [3] Effect of Government Nonintervention [4] Effect of Relator Involvement in Wrongdoing
[5] When the Government Pursues Alternative Remedies
[6] Other Government Attempts to Minimize Relator's Contribution - 13.03 Determining the “Proceeds of the Action”
[1] Non-Cash Remedies [2] Actual Recovery
- 13.04 Attorney's Fees, Costs, and Expenses [1] Who Owns the Fee?
[2] What Constitutes “Reasonable Attorney's Fees”
[3] Apportionment of Attorney's Fees, Costs, and Expenses Among Multiple Defendants [4] Defendant's Right to Recover Attorney's Fees, Costs, and Expenses
- 13.05 Settlement Documents [1] Confidentiality Agreements [2] Corporate Integrity Agreements
- 13.06 Dischargeability of FCA Settlement Payment in Bankruptcy [1] Debtor Is a Corporation
[2] Debtor Is an Individual - 13.07 Taxes
[1] Deductibility of Settlement Payment by Defendant [2] Taxability of Relator's Share of Recovery
[3] Taxability of Attorney's Fees as Part of Relator's Share of Recovery
- 13.07 A Statutory Dismissal Requirements: The Rights of the Government versus the Rights of the Relator to Object
[1] Standards for Dismissal [2] Rights of the Relator to Object - 13.08 Perspectives [1] Relator Perspective [2] Defendant Perspective [3] Government Perspective [4] Judicial Perspective [5] Current Thoughts CHAPTER 14
State and Municipal False Claims Acts and Other Whistleblower Statutes - 14.01 Overview of State False Claims Acts
- 14.02 The Deficit Reduction Act of 2005 - 14.03 Liability and Damages Provisions - 14.04 Procedural Issues
[1] Who Can Be a Relator? [2] Statute of Limitations [3] Privileges
[4] Counterclaims
[5] Other Procedural Issues
- 14.05 Jurisdictional Bars to Actions [1] First to File Bar
[2] Public Disclosure Bar - 14.06 Retaliation - 14.07 Relator's Share
- 14.08 Municipal and County False Claims Acts [1] Chicago
[2] New York
[3] Miami-Dade County
- 14.09 Issues Arising from State and Federal False Claims Acts [1] Interpretation of State and Municipal Statutes
[2] Constitutional Challenges
- 14.10 Internal Revenue Service Whistleblower Program - 14.11 Perspectives
[1] Relator Perspective [2] Defendant Perspective [3] Government Perspective [4] Judicial Perspective
[5] Current Thoughts CHAPTER 15
Non-FCA Federal Whistleblower Programs
- 15.01 Internal Revenue Service Whistleblower Program [1] Generally
[2] Whistleblower Provisions [3] Filing a Claim and Form 211 [4] Criticisms
- 15.02 American Recovery and Reinvestment Act of 2009 [1] Prohibition Against Reprisals
[2] Agency Action [3] Civil Action
- 15.03 Securities and Exchange Commission Whistleblower Program [1] Prohibition Against Retaliation
[2] Enforcement Action [3] Civil Action
Appendix
Table of Abbreviations Index
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