False Claims and Whistleblowers

The federal False Claims Act (FCA) allows "whistleblowers" who file lawsuits against companies and individuals suspected of defrauding the government to receive between 15 and 30 percent of amounts obtained by the United States government from defendants charged with violations of the Act. The FCA, which provides for triple damages and payment of attorneys' fees, prohibits the making of claims for payment from federal funds where the claims are "false" within the meaning of the statute. There are similar statutes in 28 states.

A global pharmaceutical company settled FCA charges in 2010 for $600 million, out of which the whistleblower received approximately $96 million. A national defense contractor settled FCA charges in 2009 for $325 million, out of which the whistleblower received approximately $49 million. Also in 2009, a national laboratory testing company settled FCA charges for $269 million, out of which the whistleblower received approximately $45 million. From 2006 through 2010, the government recovered approximately $8.4 billion under the whistleblower provision of the FCA. Amendments to the FCA in 2009 and 2010 significantly expanded the statute's reach, making it easier to qualify as a whistleblower under the FCA and covering the activities of many more entities. See "A New 'All Purpose Anti-Fraud' Act? Are You in Compliance?," AKO Commercial Litigation Advisor (Winter 2009).

Anderson Kill attorneys, including former Assistant United States Attorneys for both the Criminal and Civil Divisions of the Department of Justice (DOJ), can offer clients the unique perspective of former government insiders who know the most relevant factors to consider in assessing FCA claims -- whether from the perspective of a whistleblower or of an investigative target or litigation defendant. Our attorneys are experienced in FCA investigations, litigation, and settlement, including large, global resolutions of all outstanding issues between the government and major corporations. They bring that prior experience to bear in dealing with the DOJ and all of the other federal agencies that may be involved in the government's investigation, in the decision whether the government will intervene in a whistleblower case, and in any determinations concerning settlement.

AKO attorneys can assist clients by:

• Evaluating the merits and likely success of a whistleblower's claim;Conducting independent investigations related to FCA claims;
• Representing clients in FCA investigations and litigation, and dealing with DOJ attorneys, including communications concerning the government's always crucial determination as to whether to intervene in a whistleblower's case;
• Handling issues involving government subpoenas and civil investigative demands; and
• Devising and implementing litigation, trial, and settlement strategies.