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In early December 2014, the United States Court of Appeals for the First Circuit reaffirmed that circuit’s broad interpretation of the False Claims Act’s “first-to-file” bar, 31 U.S.C. § 3730(b)(5), in United States ex rel. Ven-a-Care of the Fla. Keys v. Baxter Healthcare Corp., 772 F.3d 932 (1st Cir. 2014).[1]  The first-to-file bar, as we have discussed in previous posts, prohibits a second relator from going forward with a False Claims Act (“FCA”) case that is similar to an earlier relator’s case.[2]
Continue Reading First Circuit Reaffirms FCA’s “First-to-File” Bar as a Broad Jurisdictional Limit

This blog post is a preview of a presentation Mr. Turetzky will be giving at the American Bar Association Public Contracts Law Section’s Fall Meeting in Miami, Florida on November 1, 2014.     

The False Claims Act, 31 U.S.C. §§ 3729-3733, enables whistleblowers—also known as qui tam relators— to file fraud suits on behalf of the United States against private government contractors.  With the assistance of qui tam relators, the United States government has recovered billions of dollars in False Claims Act settlements and judgments.  Allowing private persons to litigate on the government’s behalf, however, often encourages parasitic, unmeritorious lawsuits.  For this reason, Congress has limited the power of qui tam litigants in a number of ways.Continue Reading Recent Developments in Cases Dealing with the False Claims Act’s First-to-File and Public Disclosure Bars

On March 4, 2014, the United States Supreme Court, in a 6-3 decision, expanded the protections offered to whistleblowers under anti-fraud laws, in Lawson v. FMR LLC.  In its decision, the Court ruled that a specific protection against retaliation enacted as part of the Sarbanes-Oxley Act after Enron’s collapse, i.e., 18 U.S.C. § 1514A, not only provides whistleblower protection to employees of public companies, but also protects a public company’s private contractors and subcontractors.
Continue Reading Sarbanes-Oxley Whistleblower Protections Cover Employees of a Public Company’s Private Contractors

The DOJ has released its Fiscal Year (“FY”) 2013 totals for civil settlements and judgments recovered under the federal False Claims Act (“FCA”).  To say that the Department had a successful year in prosecuting fraud against the government would be putting it mildly.  According to the DOJ release, the government recovered $3.8 billion under the FCA in FY 2013.  That total is second only to the approximately $5 billion recovered under the FCA in FY 2012; and it marks the fourth time in as many years that the government’s recoveries under the Act exceeded $3 billion.
Continue Reading False Claims Act Whistleblower Bounties Exceed $345 Million in Fiscal Year 2013

In a recent False Claims Act (“FCA”) opinion that has already been heavily criticized, the Fourth Circuit held that a $24 million penalty was not “excessive” under the Constitution even where damages were not proven at trial and where the government had paid only a total of $3.3 million for the services in question.  United States ex rel. Bunk v. Gosselin World Wide Moving, N.V., No. 12-1369 (4th Cir. Dec. 18, 2013).
Continue Reading Fourth Circuit Finds $24 Million False Claims Act Penalty Not Excessive Even Where No Damages Proven at Trial

By John Hynes

On November 2, 2012, the Sixth Circuit held that a 2009 amendment Congress made to the liability provisions of the False Claims Act ("FCA") applies retroactively to civil FCA cases pending as of June 7, 2008. U.S. ex rel. Sanders v. Allison Engine Co., Nos. 10-3818/10-3821, at *17-20 (6th Cir. Nov. 2, 2012).Continue Reading Sixth Circuit: FERA False Claims Act Amendment Applies Retroactively to Cases Pending as of June 7, 2008

By Anthony N. Moshirnia

Blowing the whistle on alleged fraud against the Government does not entitle an employee to loot and disclose her employer’s records in violation of a confidentiality agreement – at least not in the Ninth Circuit. In an opinion handed down in March of this year, the Ninth Circuit refused to adopt a so-called “public policy exception to confidentiality agreements to protect [qui tam plaintiffs]” who misappropriate documents from their employers ostensibly to buttress claims brought under the federal False Claims Act (“FCA”). U.S. ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061-62 (9th Cir. 2011). Though this opinion has been on the books since Spring, it remains relevant, and worth keeping an eye on, as it provides powerful ammunition against FCA plaintiffs that continue to tout the “public policy” exception as though it were unassailable. Continue Reading In Ninth Circuit, Whistleblowers Not Exempt From Confidentiality Agreements

By Peter Menard

The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) became law on July 21, 2010. A primary purpose of the Act is to further incentivize whistleblowers…

Continue Reading The Dodd Frank Act: A Guide to the Corporate Governance, Executive Compensation, and Disclosure Provisions

By Robert M. P. Hurwitz

The Supreme Court recently heard oral argument in a case testing the scope of the False Claims Act’s public disclosure bar. The False Claims Act (“FCA”) is the government’s primary weapon against waste, fraud, and abuse in government contracting.  Penalties for FCA violations are harsh: actual damages are trebled, and each false claim (such as an individual invoice) triggers a penalty of up to $11,000. Under the FCA’s qui tam provisions, whistleblowers (formally called relators) can bring lawsuits on behalf of the government. Whistleblowers receive a significant bounty for acting as private prosecutors: they are entitled to between 15 and 30 percent of the government’s proceeds from the litigation. This is a substantial sum, as the trebling and penalty provisions catapult many modest matters into multimillion dollar actions.
 Continue Reading The Supreme Court To Decide Whether FOIA Responses Trigger The False Claims Act’s Public Disclosure Bar