Defense Contrating Fraud Attorney Tim McInnis
7. If one had to cite a few of the greatest obstacles to successful False Claims Act cases involving Defense Contracting Fraud what would they be?
These would include: (a) the so-called “public disclosure” bar (since there are often news stories or Government investigations and reports involving defense contracting fraud allegations); (b) Government knowledge of the fraud and authorization of the apparent misconduct (because it is not unusual for defense contractors to work closely with U.S. military and defense departments and agencies); and (c) the inability to meet Rule 9(b)’s “pleading fraud with particularity” requirement (as it is difficult for a whistleblower to have comprehensive knowledge of both the underlying fraudulent practices taking place and detailed billing and contracting information).
8. Are there ways to get around these obstacles?
Obviously, there can be no guarantees. But, one can minimize them by a thorough and thoughtful investigation of the client’s allegations, selection of the best available jurisdiction for filing the lawsuit (since some are more favorable than others on critical legal issues, such as the public disclosure bar and Rule (9b) requirements), and effectively presenting the matter to representatives of the Department of Justice and U.S. Attorneys’ Offices.
9. How have the 2009 and 2010 amendments to the False Claims Act helped in cases involving Defense Contracting Fraud?
Congress has made it much easier to qualify for the “original source” exception to the public disclosure bar. The recent amendments have also clarified sub-contractor and grantee liability. They have also expressly made the wrongful retention of improperly obtained funds a basis for False Claims Act liability. And, there is now a specific three year statute of limitations for whistleblower retaliation cases.
10. What have been some of the recent case-law developments in the area of Defense Contracting Fraud?
Two things come to mind immediately. One is the tolling of the False Claims Act’s six year statute of limitations under the Wartime Suspension of Limitations Act (WSLA). The other is the recognition that defense contractors and security consultants who defraud foreign Governments receiving U.S. funds (such as Afghanistan and Iraq) can be held liable under the False Claims Act.