DEVELOPMENTS IN QUI TAM WHISTLEBLOWER SUITS. September 15, Daniel M. McClure Fulbright & Jaworski L.L.P. Houston, Texas dmcclure@fulbright.

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1 DEVELOPMENTS IN QUI TAM WHISTLEBLOWER SUITS September 15, 2011 Daniel M. McClure Fulbright & Jaworski L.L.P. Houston, Texas QUI TAM Qui Tam Pro Domino Rege Quam Pro Se Ipso In Hac Parte Sequitir Who Brings The Action For The King As Well As For Himself Blackstone Commentaries (1768) 2 1

2 Enacted in 1863 Response to massive frauds by Civil War defense contractors Amended in Recovery liberalized Follows the money: Defense Industry Health Care Industry Oil and gas FALSE CLAIMS ACT 31 U.S.C et seq. 3 QUI TAM LAWSUITS ON THE RISE 600 Number of Cases Filed Fiscal Year 4 2

3 STATUTORY DAMAGES Damages are Actual Damages to the Government Treble Damages Automatic Civil Penalty of $5,500 to $11,000 Per Claim Attorney s Fees and Expenses 5 QUI TAM WHISTLEBLOWER AWARDS If the Government declines to intervene, Relator gets 25% to 30% of the award or settlement. If the Government intervenes, relator gets 15% to 25% of award or settlement, depending on their contribution to the prosecution. 18% is average Relator also gets a separate award from the defendant of expenses, including attorney s fees and cost. 6 3

4 FALSE CLAIMS ACT Direct False Claim (31 U.S.C (a)(1)-(2)) Any person who knowingly presents, or causes to be presented, to the United States Government a false or fraudulent claim for payment or approval; Any person who knowingly makes, use, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; or Reverse False Claim (31 U.S.C (a)(7)) Any person who knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government. 7 FALSE CLAIMS ACT KNOWLEDGE (31 U.S.C. 3729(b)) Under the FCA, a person acts knowingly if he/she: Has actual knowledge of the information; Acts in deliberate ignorance of the truth or falsity of the information; or Acts in reckless disregard of the truth or falsity of the information. And no specific proof of intent to defraud is required. 8 4

5 STEP ONE Relator files complaint in camera with the court. The complaint remains under seal in the Clerk s office. Defendant is not served. Complaint is not part of the public record. Breaking the seal may lead to dismissal. 9 STEP TWO Relator serves a copy of the complaint on the United States along with a written disclosure of substantially all material evidence the relator possesses. 10 5

6 Government reviews the complaint and written disclosure to determine if it will intervene and take over the litigation. Government gets an initial 60-day period for its review. Extensions granted by court for good cause Extensions often stretch out for 18 months to 2 1/2 years. Good cause shown by ongoing investigation. Case remains under seal. STEP THREE 11 Government Notifies the Court: 1. It will proceed with the action, in which case it conducts the litigation; OR 2. It declines to take over the action, in which case relator has the right to conduct the litigation; OR STEP FOUR 3. It asks the Court for a partial lifting of the seal so it can discuss settlement with the defendant. 12 6

7 STEP FOUR IS THE MOST CRITICAL STEP FOR THE DEFENDANT Most qui tam recoveries come from cases where the Government intervenes. Few cases are unsealed without some opportunity for settlement discussions. 13 STEP FIVE Either Case is settled OR 2. Case is unsealed and litigation goes forward. 14 7

8 AMENDMENTS BROADEN REACH OF QUI TAM SUITS 2009 Fraud Enforcement and Recovery Act (FERA) provides FCA applies to (1) claims made to Government contractors, and (2) the retention of overpayments 2010 Patient Protection and Affordable Care Act (PPACA) narrows the public disclosure defense and allows relators to sue based on knowledge acquired in civil litigation. 15 8