Info for Clients
ANSWERS TO FREQUENTLY ASKED QUESTIONS
Here are straightforward answers to common questions about “Qui Tam” lawsuits:
What is this area of law about?
It’s about people (such as employees, consultants, competitors, vendors, etc.) who sue someone or some organization on behalf of the U.S.- and/or various individual States, counties or municipalities, to stop fraud and get a reward.
What does the lawsuit say?
The lawsuit typically alleges that the defendant got federal and/or state (or county or city) money through lies, misrepresentations and important omissions–not as the result of “technical” mistakes or good faith errors. If the defendant loses, it has to pay back the improperly obtained funds and often a fine or penalty.
What does Qui Tam mean?
It’s part of an outdated Latin phrase for a lawsuit that pay a reward to whistleblowers who sue on behalf of a governmental entity.
What is the federal False Claims Act (FCA)?
Passed in 1863 to combat Civil War fraud, it’s a federal statute designed to monetarily punish people and organizations that defraud the United States. Sometimes it’s called the “Lincoln Law.” The FCA has a qui tam provision in it. More recently, a number of States and a few municipalities have enacted similar laws.
What kinds of fraud does the FCA cover?
Just about anything other than tax fraud. There is a separate IRS statute for that. There are also whistleblower laws for SEC, CFTC and bank fraud.
What is government intervention and why is it important?
The U.S. and/or states can join any FCA lawsuit they think is worthwhile. Having the government intervene is about the best thing that can happen for the whistleblower. More than 90 percent of qui tam recoveries occur when the U.S. or a state intervenes in the case.
How much money can a whistleblower get?
Usually, between 15 and 25 per cent of the eligible recovery, plus attorney’s fees and litigation costs if ordered by the court. A whistleblower gets paid by the government only from the proceeds of a successful case. A whistleblower may also recover damages from an employer for retaliation against him or her for being a whistleblower.
What is a good FCA case?
One with: (a) solid proofs of intentional fraud and specific facts concerning the who, -what, when and how – of the false claims and fraudulent scheme; (b) no legal deficiencies that will cause the suit to be quickly dismissed, such as statute of limitations; and (c) high damages and a defendant who has the financial resources to pay the judgment.
What should you do if you have a possible FCA case?
Make sure you want to get involved– it’s often a long and stressful process. If think you do, promptly contact a lawyer experienced in this complex and ever-changing area of law.
PRE-FCA LAWSUIT CHECKLIST
Overview
The Federal and various State and Local False Claims Acts (FCA) cover just about any situation where some person or organization is defrauding a government program. With their “qui tam” provisions, these laws encourage private citizens to sue those committing government fraud. If there is a recovery, these FCA laws provide that the “whistleblower” can receive part of it as a reward. Here are 11 questions that you probably want to be able to answer with a “Yes” prior to starting an FCA case.
11 Point Checklist
1. Does the matter involve a claim for money in connection with a government program or agency?
2. Is the fraudulent activity ongoing or has it occurred fairly recently (past six years)?
3. Are you reasonably sure that your information has not already been made public?
4. Do you have at least some first-hand knowledge about the fraudulent conduct or have you added a unique analysis to public information or data?
5. Can you show that the target of your allegations intentionally defrauded the Federal, State or Local Government, as opposed to having made honest mistakes or committed technical violations?
6. Do you believe that you did not knowingly or intentionally engaged in the suspected fraudulent conduct, or, if you did, you were just doing what higher level people told you to do?
7. Is there a way to corroborate your information (with documents, witnesses, evidence, etc.)?
8. Are you willing to go through a year-long ordeal before your case is fully resolved?
9. Can you accept the fact that, at some point, it is likely your role as a whistleblower will be revealed to the defendant(s) and possibly made public?
10. Do you realize that once you start the suit, the U.S., state or local government may get involved and, if they do, you will not have control over whom they will investigate and possibly sue or prosecute criminally?
11. Will the targeted entity or person have the financial ability to pay the U.S., state or local governments if your case is successful?
DOJ INTERNAL RELATOR’S SHARE GUIDELINES
Section 3730(d)(1) of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-33, provides that a qui tam relator, when the government has intervened in the lawsuit, shall receive at least 15 percent but not more than 25 percent of the proceeds of the FCA action depending upon the extent to which the relator substantially contributed to the prosecution of the action. When the government does not intervene, section 3730(d)(2) provides that the relator shall receive an amount that the court decides is reasonable and shall be not less than 25 percent and not more than 30 percent. The legislative history suggests that the 15 percent should be viewed as the minimum award – a finder’s fee – and the starting point for a determination of the proper award. When trying to reach agreement with a relator as to his share of the proceeds, or proposing an amount or percentage to a court, we suggest that you begin your analysis at 15 percent. Then consider if there are any bases to increase the percentage based on the criteria set forth below. Having done this, consider if that percentage should be reduced based on the second set of criteria. Of course, absent one of the statutory bases for an award below 15 percent discussed at the end of these guidelines, the percentage cannot be below 15 percent (or 25 percent if we did not intervene).
Items for consideration for a possible increase in the percentage:
1. The relator reported the fraud promptly.
2. When he learned of the fraud, the relator tried to stop the fraud or reported it to a supervisor or the government.
3. The qui tam filing, or the ensuing investigation, caused the offender to halt the fraudulent practices.
4. The complaint warned the Government of a significant safety issue.
5. The complaint exposed a nationwide practice.
6. The relator provided extensive, first-hand details of the fraud to the government.
7. The government had no knowledge of the fraud.
8. The relator provided substantial assistance during the investigation and/or pre-trial phases of the case.
9. At his deposition and/or trial, the relator was an excellent, credible witness.
10. The relator’s counsel provided substantial assistance to the government.
11. The relator and his counsel supported and cooperated with the government during the entire proceeding.
12. The case went to trial.
13. The FCA recovery was relatively small.
14. The filing of the complaint had a substantial adverse impact on the relator.
These items are not meant to be an exhaustive list of the criteria one should consider when trying to determine an appropriate award for a relator, but they do constitute many of the factors that routinely should be considered. Finally, please note that section 3730(d)(1) limits the relator to no more than 10 percent of the proceeds when the complaint is based primarily on public information and that section 3730(d)(3) allows the court to reduce the percentage below 15 percent if the relator planned and initiated the fraud and requires the court to dismiss the relator if he is convicted for the actions giving rise to the submission of the false claims.
NYS STATEMENT OF CLIENT’S RIGHTS
The Appellate Divisions of the New York State Supreme Courts require that every attorney with an office located in the State of New York shall insure that there is posted in that office, in a manner visible to clients of the attorney, a statement of client’s rights in the form set forth below:
1. You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and nonlawyer personnel in your lawyer’s office.
2. You are entitled to have your attorney handle your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to discharge your attorney and terminate the attorney-client relationship at any time. (Court approval may be required in some matters, and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge.)
3. You are entitled to your lawyer’s independent professional judgment and undivided loyalty uncompromised by conflicts of interest.
4. You are entitled to be charged reasonable fees and expenses and to have your lawyer explain before or within a reasonable time after commencement of the representation how the fees and expenses will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill from your attorney at reasonable intervals. You may refuse to enter into any arrangement for fees and expenses that you find unsatisfactory. In the event of a fee dispute, you may have the right to seek arbitration; your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request.
5. You are entitled to have your questions and concerns addressed promptly and to receive a prompt reply to your letters, telephone calls, emails, faxes, and other communications.
6. You are entitled to be kept reasonably informed as to the status of your matter and are entitled to have your attorney promptly comply with your reasonable requests for information, including your requests for copies of papers relevant to the matter. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter and make informed decisions regarding the representation.
7. You are entitled to have your legitimate objectives respected by your attorney. In particular, the decision of whether to settle your matter is yours and not your lawyer’s. (Court approval of a settlement is required in some matters.)
8. You have the right to privacy in your communications with your lawyer and to have your confidential information preserved by your lawyer to the extent required by law.
9. You are entitled to have your attorney conduct himself or herself ethically in accordance with the New York Rules of Professional Conduct.
10. You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin or disability.
NYS STATEMENT OF CLIENT’S RESPONSIBILITIES
This is an informational statement adopted by the NY State Bar Association:
1. The client is expected to treat the lawyer and the lawyer’s staff with courtesy and consideration.
2. The client’s relationship with the lawyer should be one of complete candor and the client should apprise the lawyer of all facts or circumstances of the matter being handled by the lawyer even if the client believes that those facts may be detrimental to the client’s cause or unflattering to the client.
3. The client must honor the fee arrangement as agreed to with the lawyer to the extent required by law.
4. All bills tendered to the client for services rendered pursuant to the agreed upon arrangement regarding fees and expenses should be paid when due.
5. A client who discharges the attorney and terminates the attorney-client relationship must nevertheless honor financial commitments under the agreed to arrangement regarding fees and expenses to the extent required by law.
6. Although the client should expect that his or her letters, telephone calls, emails, faxes and other communications to the lawyer will be answered within a reasonable time, the client should recognize that the lawyer has other clients who may be equally deserving of the lawyer’s time and attention.
7. The client should maintain contact with the lawyer, promptly notify the lawyer of any change in telephone number, address, email, or other electronic contact information, and respond promptly to a request from the lawyer for information and cooperation.
8. The client must realize that the lawyer is required to respect only legitimate objectives of the client and that the lawyer will not advocate or propose positions that are unprofessional or contrary to law or the New York Rules of Professional Conduct.
9. The lawyer may decline to accept a matter of the lawyer has previous personal or professional commitments that will prohibit the lawyer from devoting adequate time to representing the client competently and diligently.
10. A lawyer is under no obligation to accept a client if the lawyer determines that the cause of the client is without merit, a conflict of interest would exist or a suitable working relationship with the client is not likely.