FALSE CLAIMS ACT: WHISTLEBLOWER LITIGATION, SIXTH EDITION

Transcription

1 NEW EDITION! FALSE CLAIMS ACT: WHISTLEBLOWER LITIGATION, SIXTH EDITION By James B. Helmer, Jr. This unique practice area is fraught with judicial pitfalls and circuit splits, challenging the most circumspect practitioner. However, with the assistance of Helmer s treatise, potential stumbling blocks become stepping stones, providing a vantage point for anticipating legal and tactical challenges. Joseph E. B. White, Nolan & Auerbach., P.A., Former President and CEO, Taxpayers Against Fraud Education Fund and Editor, False Claims Act & Qui Tam Quarterly Review >>>>>>>>>>> ALSO INSIDE: Whistleblowing: The Law of Retaliatory Discharge, Second Edition, with 2012 Cumulative Supplement FREE 30-DAY REVIEW Order online at bnabooks and save 10%!

2 2012/Approx. 1,300 pp. Hardcover ISBN Order #2197/$ NEW EDITION! FALSE CLAIMS ACT: WHISTLEBLOWER LITIGATION, SIXTH EDITION By James B. Helmer, Jr. EFFECTIVELY LITIGATE QUI TAM CASES with this definitive guide ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: The False Claims Act is one of the most litigated pieces of legislation ever enacted by Congress, with more than 8,000 claims filed under the Act since 1986 and $30 billion in taxpayer funds recovered. The Act turns 150 years old in 2013, but years of judicial interpretations have greatly complicated the process of bringing a case under the Act. Amendments in 2009 and 2010 helped simplify this process, but many nuances and hurdles remain. Written by the trial lawyer called to testify before Congress on ways to modernize, update, and streamline the Act in the 1980s, and again in 2008, False Claims Act: Whistleblower Litigation, Sixth Edition provides expert guidance and analysis of the Act and the many different legislative developments and judicial opinions surrounding it. Previously published by Top Gun Publishing LLC (Cincinnati, OH), this treatise offers insightful and authoritative experience on the subject from the most experienced False Claims Act lawyer in the country. In False Claims Act: Whistleblower Litigation, Sixth Edition, practitioners will find discussion of: > > Pharmaceutical company liability > > Circuit by circuit analysis of Civil Rule 9(b) to False Claims Act complaints > > Bankruptcy proceedings > > Statute of limitations for whistleblower employment protections > > Identifying alternate proceedings > > Disclosure of defendants fee information > > Settlement challenges by relators, non-settling defendants, and the government > > State and municipal False Claim Act statutes Since publication of the Fifth Edition in 2007, Congress has amended the False Claims Act three times and the courts have issued more than 2,000 opinions related to the Act. These amendments are fully examined and explained in the Sixth Edition, as are the sometimes conflicting court opinions that have resulted in procedural minefields and other obstacles to liability. The treatise covers all aspects of litigation in this complex area, and is the most comprehensive and recent book on the subject. The Sixth Edition also includes: > > A chapter that details all U.S. Supreme Court opinions related to the Act and their significance > > A chapter on the numerous state False Claims Acts that have been enacted > > A comprehensive collection of appendices on a searchable CD-ROM, providing more than 40 letters, complaints, statements, interrogatories, requests, motions, and affidavits With the Sixth Edition, practitioners have all the model forms and procedures needed to effectively litigate qui tam cases. The treatise also includes a table of cases and all versions of this unusual and remarkable statute and its legislative history, providing a quick reference for both plaintiff and defense attorneys analyzing the unique qui tam litigation allowed by the Act. Visit for more detailed information.

3 False Claims Act: Whistleblower Litigation, Sixth Edition provides samples of: > > Motions in Limine used in recent cases > > HIPAA and PHSA complaint protective orders > > United States Bankruptcy Court Proof of Claim and Application of Trustee to Employ Special Counsel > > Attorneys fees and costs application, declaration of counsel, and affidavit in support of an expert > > Jury Instructions, Special Interrogatories, and Verdict Form In 2012 the False Claims Act returned more than $9 billion in stolen taxpayer money. As long as they are properly prepared, litigators will have many opportunities to recover lost taxpayer dollars. This treatise offers a clear understanding of the Act, providing a strong vantage point for bringing a False Claims Act case and for anticipating legal and tactical challenges. > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > FALSE CLAIMS ACT: WHISTLEBLOWER LITIGATION, SIXTH EDITION Summary of Contents Chapter 1. Whistleblowers Fighting for What s Right II. What it Means to Be a Whistleblower III. Is a Qui Tam Suit a Whistleblower s Only Choice? IV Sooner or Later, You Will Fight with Your Government Chapter 2. History of Qui Tam Litigation II. Early English Qui Tam Statutes III. Early Defense Contractor Fraud in America IV. Civil War Enactment V. The 1943 Amendments to the False Claims Act VI. The 1986 Amendments to the False Claims Act VII. The 2009 Amendments to the False Claims Act FERA VIII. The 2010 Amendments to the False Claims Act IX. Chart Comparing 1986 Version With All Amendments Since Then [1988, 2009, 2010] Chapter 3. Statutory Framework of The False Claims Act II. What Is a False Claim? III. What Constitutes a Knowing Intent to Defraud Under the Act? IV. Burden of Proof V. Limitations on Who Can Bring Qui Tam Suits VI. Where Suit Can Be Brought VII. Statute of Limitations VIII. Conduct of False Claims Act Litigation IX. Damages X. Whistleblower Protection XI. The Scope of the False Claims Act XII. What Constitutes False Claims? XIII. Materiality as an Element of a Civil False Claims Act Action XIV. Proof of Actual Damages Not Required to Establish False Claims Act Violations XV. Intent to Defraud, Specific Intent, and Scienter XVI. Prime Contractor and Subcontractor False Claims Act Liability XVII. False Claims Act Relationship with Contract Disputes Act, 41 U.S.C. 605(a) XVIII. Tax Bar Chapter 4. The Constitutionality of the Qui Tam Provisions II. The History of Qui Tam Actions as Evidence of the Constitutionality of the False Claims Act s Qui Tam Provisions III. Relators Standing to Sue Under the Qui Tam Provisions of the False Claims Act IV. The Supreme Court Speaks Out in Stevens: A Relator Has Article III Standing Under the False Claims Act V. The Qui Tam Provisions of the False Claims Act Are Consistent with the Separation of Powers Doctrine of the Article II Take Care Clause VI. The Qui Tam Provisions of the False Claims Act are Consistent with the Appointments Clause of Article II VII. The Qui Tam Provisions of the False Claims Act Do Not Violate Due Process VIII. Constitutionality of the 2009 Amendment to Section 3729(a)(1)(B) IX. Seal Provision of False Claims Act is Constitutional X. Conclusion Chapter 5. Subject Matter Jurisdiction II. Actions By and Against Soldiers III. Actions Against Senior Government Officials IV. Actions Already in Government Litigation V. Public Disclosure and Original Source: Introduction VI. The Patient Protection and Affordable Care Act and its Amendments of Public Disclosure Bar VII. Public Disclosure Jurisprudence VIII. Based Upon Publicly Disclosed Information IX. Original Source X. Other Original Source Issues Chapter 6. Other Threshold Issues I. Multiple Relators II. Preemption III. Venue, Personal Jurisdiction, Transfer, and Forum Non Conveniens IV. Attempts to Limit Relator s Role in False Claims Act Actions V. Primary Jurisdiction VI. Laches and Statutes of Limitations VII. Collateral Estoppel VIII. Retroactivity of Amendments to the False Claims Act IX. Alternate Proceedings: 31 U.S.C. 3730(c)(5) and (e)(3) X. Multi-District Litigation and False Claims Act Cases XI. Bankruptcy Issues and the False Claims Act Chapter 7. Attorney Client Relationships in False Claims Act Litigation to Client Relationships II. Contract of Representation III. The Relationship Between the Relator and Relator s Counsel IV. Defendant s Attorney Client Relationship V. The Government s Attorney Client Relationship Chapter 8. Preparation of the Sealed False Claims Act Case I. Selecting the Case II. Information and Document Gathering III. Investigating and Selecting the Potential Defendants IV. The Disclosure Statement to the Attorney General V. The False Claims Act Complaint V to Bringing the Suit VII. Filing the Qui Tam Action Under Seal VIII. Assisting in the Government s Investigation IX. How Long Will the Government Investigation Last? X. The Defendant s Role While the Case Is Under Seal XI. Preparing to Unseal the Case XII. Failure to Comply with Seal Requirements XIII. Procedures for Unsealing Complaint XIV. Service of the Unsealed Complaint XV. Amending the Complaint XVI. Litigation Procedures After the Government s Election XVII. Litigation Procedures Where Government Does Not Proceed with Action XVIII. Can The False Claims Act Case Remain Under Seal if the Government Does Not Intervene? XIX. Preliminary Injunction Chapter 9. Discovery In False Claims Act Cases I. Basic Considerations for Discovery II. Planning Discovery: What, When and Where III. Special Considerations in Obtaining False Claims Act Discovery IV. Discovery Issues and Disputes V. Resolution of False Claims Act Discovery Disputes VI. Touhy Regulations

4 About the Author James B. Helmer, Jr., is a Senior Partner and President of Helmer, Martins, Rice & Popham Co., L.P.A., in Cincinnati, OH. He has prosecuted qui tam cases longer than any attorney in America and has obtained several record recoveries. He has testified before several Congressional committees concerning amending the False Claims Act and argued the Allison Engine qui tam case before the Supreme Court of the United States. Mr. Helmer has obtained several multi-million dollar jury verdicts and has been trial counsel in over 300 published legal decisions including over 100 dealing with the False Claims Act. > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > Chapter 10. Common Defenses I. Rule 9(b) - Pleading with Particularity Requirements by Federal Circuit II. Government Knowledge is Not a True Affirmative Defense III. Limitations on Affirmative Defenses IV. Sovereign Immunity Concerning Suits Against States and Local Entities V. Unsupervised Releases of False Claims VI. Counterclaim Chapter 11. Common False Claims Act Motion Practice II. Preparation for Briefing III. Motions to Dismiss IV. Motions for Summary Judgment V. Motions In Limine VI. Final Pretrial Briefing VII. Post Trial Briefing VIII. Other Briefing Issues Chapter 12. Specialized Knowledge and Expertise: Use of Testifying and Non-Testifying Experts II. How to Find a Good Expert III. Using Non-testifying Experts to Consult With You IV. Types of Experts V. Admissibility of Expert Witness Testimony Chapter 13. Trial Strategies in the False Claims Act Case II. Examples of Themes for the Government and Relators III. Examples of Themes for Defendants IV. Computers and False Claims Act Trials V. Evidence Questions VI. Jury Instructions Chapter 14. Damages and Basic False Claims Act Damage Theory II. Proof of Damages III. Actual Damages IV. Consequential Damages V. Multiple Damages VI. Civil Penalties VII. Double Damages for Voluntary Disclosure VIII. Interest IX. Joint and Several Liability X. Contribution and Indemnification Between Defendants XI. Jury Not Instructed Regarding Trebling or Attorneys Fees XII. Damages for High Value Items Chapter 15. Whistleblower Protections in The Workplace I. Whistleblower Protections Under 31 U.S.C. 3730(h) II. The Broad Scope and Purpose of Whistleblower Protection Under 31 U.S.C. 3730(h) III. The Employment Relationship IV. Protection Against All Types of Retaliatory Conduct V. Adoption of Employment Law Doctrines and Constructive Discharge VI. Proving 31 U.S.C. 3730(h) Whistleblower Retaliation Claims VII. Preemption of State Law Employment Claims VIII. Concurrent Jurisdiction IX. Injunctive Relief X. Other Relief XI. Statute of Limitations XII. Settlement Chapter 16. Relator s Share of The Recovery I. The Relator s Share of the False Claims Act Recovery II. The 1986 Congressional Intent in Support of the Relator s Share III. Relator s Share Where the Case Is Based on a Public Disclosure IV. A Relator Criminally Convicted for Conduct Arising From a Violation of the False Claims Act is Not Entitled to a Reward V. Relator s Share Where the Relator Planned and Initiated the Fraud VI. Relator s Share Case Law VII. What Constitutes the Proceeds of a Settlement VIII. Relator s Share in Alternate Remedies IX. Department of Justice Relator s Share Guidelines X. When a Dispute Arises Over the Relator s Share, What Happens to the Contested Portion of the Relator s Share? XI. Taxation of Relator s Share Chapter 17. Attorneys Fees II. Relator s Right to Attorneys Fees III. Defendant s Right to Attorneys Fees IV. The Government s Right to Attorneys Fees V. Obtaining an Award of Attorneys Fees, Expenses, and Costs Under the False Claims Act VI. Upward Adjustments VII. Recovery of Both Statutory and Contingent Fees VIII. Arming for a Fee Fight: Discovery of Defendants Fee and Expense Information IX. The Government s Interest in Relator s Attorneys Fees X. Joint and Several Liability for Attorneys Fees Chapter 18. Appeals I. Appeals II. Interlocutory Appeals Under 28 U.S.C. 2192(b) Chapter 19. Settlement II. Settlement Goals in False Claims Act Litigation III. Relators Settlement Goals IV. The Department of Justice s Settlement Goals V. The Trial Court s Settlement Role VI. Raising the Subject of Settlement VII. Confidentiality VIII. Settlement Documents IX. Relator s Challenges to Settlement X. Non-Settling Defendant s Challenges to a Settlement XI. The Government s Challenges to a Settlement Chapter 20. Press, Congress, Public Interest I. How the Press Can Impact Your Case II. How to Make the Most of Publicity About Your Case III. The United States Congress IV. Ethical Considerations in Media Relations Chapter 21. Future Outlook for the False Claims Act II. Continued Attacks on the Qui Tam Provisions of the False Claims Act III. The False Claims Act and Pharmaceutical Companies IV. The Applicability of the False Claims Act to Faith-Based Organizations that Receive Federal Funds V. Using the False Claims Act in the Context of Hospital Fraud VI. The False Claims Act as an Ant Smasher Chapter 22. State False Claims Acts I. States Jump on the False Claims Act Bandwagon II. State Statutes Rewarding Successful Whistleblowers III. Other States Chapter 23. FCA And the Supreme Court II. Supreme Court Decisions, Pre 1986 Amendments III. Supreme Court Decisions, Post 1986 Amendments Appendices Table of Cases Index

5 START YOUR FREE 30-DAY REVIEW! Call , go to or use the attached postage-paid order form. NO POSTAGE NECESSARY IF MAILED IN THE UNITED STATES BUSINESS REPLY MAIL FIRST-CLASS MAIL PERMIT NO WASHINGTON DC POSTAGE WILL BE PAID BY ADDRESSEE Bloomberg BNA Book Division PO Box 7814 Edison NJ /456 pp. Hardcover with 2012 Cumulative Supplement Order #9107P/$ Cumulative Supplement alone: ISBN Order #2107/$ WHISTLEBLOWING: THE LAW OF RETALIATORY DISCHARGE, SECOND EDITION, WITH 2012 CUMULATIVE SUPPLEMENT By Daniel P. Westman and Nancy M. Modesitt This treatise explains the nuts and bolts of the Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and other applicable federal and state laws, tracking litigation, and new legislation in detail to give practitioners up-to-date information on the latest issues, procedural problems, tactics, and strategies. The new 2012 Cumulative Supplement, current through July 2012, contains updated discussion of Final Regulation 21F, which implements the anonymous whistleblower reward program of the Securities and Exchange Commission required by the Dodd-Frank Act; several employee-favorable decisions of the Administrative Review Board in Sarbanes-Oxley whistleblower matters with respect to covered employers, the scope of protected employee conduct, and standards for motions to dismiss and for summary decision; the amended regulations under 29 CFR Part 1980 for whistleblower proceedings under the Sarbanes-Oxley Act; and several significant common law developments with respect to wrongful discharge in violation of public policy, including the availability of punitive damages under Texas law and choice of law issues under California law. About the Authors Daniel P. Westman is a partner in the law firm of Morrison & Foerster LLP, McLean, VA. Nancy M. Modesitt is an Assistant Professor at the University of Baltimore School of Law, Baltimore, MD, teaching Employment Law and Torts and Legal Writing.

6 5 EASY WAYS TO ORDER web: call: WEB ORDERS 10% OFF! fax: mail: Bloomberg BNA Book Division PO Box 7814 Edison, NJ Please refer to the Priority Code on the order form when placing your order. ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: YOUR 30-DAY GUARANTEE If you re not completely satisfied with your order, simply return it within 30 days of receipt for a full refund or cancellation of all charges. Please note: If a method other than UPS Ground is requested for shipping (overnight, etc.), Bloomberg BNA will not refund shipping costs. Books purchased as sets must be returned as sets. ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: BLOOMBERG BNA STANDING ORDERS By choosing Standing Order, you know that you will always be equipped with the most current information available from the Bloomberg BNA book division. As soon as a new supplement or edition is published (usually annually) for a title you ve previously purchased, we ll automatically ship it to you to review for 30 days without obligation. During this period, you can either honor the invoice or return the book(s); your invoice will be cancelled upon receipt of the book(s) in the warehouse. It s as simple and easy as that. Most importantly, you never have to worry or wonder about the timeliness of the information you re relying on. Standing Order status offers convenience, assurance, and confidence isn t this the right choice for you? (Please note: Discounts cannot be combined. The packaged pricing of bundled titles is already discounted and cannot be combined with any other discounts.) *To protect your credit card information, please put this order form in an envelope if paying by credit card. 4134_FCA Bloomberg BNA Book Division 1801 S. Bell Street Arlington, VA DAY FREE-TRIAL CERTIFICATE YES! Send me the following title(s) for 30 days, risk free at the price(s) below, plus applicable sales tax and shipping/handling. QTY. ORDER# TITLE PRICE 2197 False Claims Act: Whistleblower Litigation, $ Sixth Edition 9107P Whistleblowing: The Law of Retaliatory $ Discharge, Second Edition, with 2012 Cumulative Supplement Cumulative Supplement alone $ PAYMENT OPTIONS I have enclosed cost of book(s), applicable sales tax, and shipping/ handling of $15 first volume, $8 each additional volume. Make check payable to BNA. Total $ Charge my: MasterCard VISA American Express CREDIT CARD NUMBER * EXPIRATION DATE 3- OR 4-DIGIT SECURITY CODE SIGNATURE Bill me cost of book(s), applicable sales tax, and actual shipping/ handling. P.O.# (if available) ADDRESS TELEPHONE Future editions/updates will be sent as changes warrant (usually annually), always on your 30-day approval (government accounts excepted). During this period, you can either honor the invoice or return the book(s); your invoice will be cancelled upon receipt of the book(s) in the warehouse. If you do not wish this upkeep service, please sign below and check here: SIGNATURE Thank you for your order!