Why Alabama Needs A State False Claims Act. Don McKenna Hare, Wynn, Newell & Newton Birmingham, Alabama Don@hwnn.com

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1 Why Alabama Needs A State False Claims Act Don McKenna Hare, Wynn, Newell & Newton Birmingham, Alabama Don@hwnn.com AThere is no kind of dishonesty into which otherwise good people move easily and frequently fall than that of defrauding the government.@ - Benjamin Franklin ( ).

2 1. The Proposed Act: House Bill 326. Sponsored by Representative Jim McClendon. Co-sponsors: E. Thomas, Wood, Beason, Davis, Collier, Ward, Albritton, Clouse, Gaines, Hill, Martin, Sanderford, Allen and Hubbard. 2. Purpose: To combat fraud upon the Alabama State Treasury and local governments by empowering individuals with actual first hand knowledge of the fraud to come forward and file a suit on behalf of themselves and the state or local government and collect a reward for a successful prosecution of the suit. 3. Why is it needed? Because Aexisting law does not provide a specific remedy for the state or political subdivisions in the state to pursue damages sustained when a person or entity commits false or fraudulent acts against the state or a political subdivision of the state.@ 4. What Fraudulent Acts Would Create Liability? a. Knowingly presenting or causing to be presented to an officer or employee of the state or of any political subdivision, a false claim for payment or approval. b. Knowingly making, using, or causing to be made or used a false record or statement to get a false claim paid or approved by the state or by any political subdivision. c. Conspiring to defraud the state or any political subdivision by getting a 2

3 false claim allowed or paid by the state or by any political subdivision. d. Having possession, custody, or control of public property or money used or to be used by the state or by any political subdivision and knowingly delivering or causing to be delivered less property than the amount for which the person receives a certificate or receipt. e. Being authorized to make or deliver a document certifying receipt of property used or to be used by the state or by any political subdivision and knowingly making or delivering a receipt that falsely represents the property used or to be used. f. Knowingly buying or receiving as a pledge of an obligation or debt, public property from any person who lawfully may not sell or pledge the property. g. Knowingly making, using or causing 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 state or to any local political subdivision. h. Being a beneficiary of an inadvertent submission of a false claim to the state or a political subdivision, subsequently discovering the falsity of the claim, and failing to disclose the false claim to the state or the political subdivision within a reasonable time after discovery of the false claim. 5. What are the Damages Provisions? Treble actual damages PLUS a $10,000 penalty per false claim (unless specific criteria for avoiding the penalty are met). 3

4 6. Who Initiates, Investigates and Prosecutes the Cases? The proposed bill provides that the State Attorney General=s Office will investigate and prosecute cases alleging fraud against the State. Local prosecuting authorities will have the authority to investigate and prosecute cases involving fraud upon local political subdivisions. The bill also gives authority to whistle blowers (or qui tam relators) to file an Alabama False Claims Act case in their name and the name of the state or local political subdivision. 7. How would a Whistle Blower Proceed with Filing An Alabama False Claims Act case? a. File a complaint under seal in circuit court. b. Serve the State Attorney General with a copy of the Complaint and a written disclosure of substantially all material evidence and information the whistle blower possesses about the fraud. c. Do not serve the defendant. 8. What Would Happen After the Filing of the Complaint and Service on the Attorney General? Within 60 Days, the Attorney General=s Office would either: a. Notify the court that the office of the Attorney General intends to proceed with the action, in which case the seal shall be lifted and the defendant served, or; 4

5 b. Notify the court that the office of Attorney General declines to proceed with the action, in which case the seal shall be lifted and the qui tam plaintiff may proceed with the action; or c. If the action involves a only political subdivision, the Attorney General would, within 15 days of receiving the complaint, forward the complaint and written disclosure to the appropriate prosecuting authority for disposition and notify the qui tam plaintiff of the transfer. The local prosecuting authority would then have 45 days to notify the court of its intent whether or not to proceed with the action. The seal would then be lifted. If the local prosecuting authority declines to proceed, the qui tam plaintiff may proceed with the action. d. If the complaint involves both State and local funds, there are three options: i. The State may elect to proceed with the action; ii. The State may decline to proceed and the local prosecuting authority decide to proceed; or iii. Both the State and local prosecuting authority decline to proceed, and allow the qui tam plaintiff to proceed. 9. Who Would Control the Prosecution of the Action? a. If the state or political subdivision proceeds with the action, the entity proceeding shall have the primary responsibility for prosecuting the action. 5

6 The qui tam plaintiff (or whistle blower) shall have the right to continue as a full party to the action. b. If the state or political subdivision elects not to proceed, the qui tam plaintiff shall have the same right to proceed in the action as the Attorney General or prosecuting authority would have had if the Attorney General or prosecuting authority had chosen to proceed. 10. What About Multiple Actions for the Same Fraudulent Conduct? The bill contains a Afirst to file@ rule similar to the federal statute. AWhen a person brings an action pursuant to this subsection, no other person may bring a related action based on the facts underlying the pending action.@ 11. Could a State or Local Government Employee Bring a Suit as Whistle Blower Under the Act? Only if the employee first exhausted existing internal procedures for reporting and seeking recovery of the falsely claimed sums through official channels and the state or political subdivision fails to act within a reasonable period of time. 12. What Reward would be Offered to The Whistle Blower for Coming Forward with Knowledge of Fraud upon the State or Other Political Subdivision? The proposed legislation provides the following incentive rewards: a. If the state or political subdivision proceeds with the action and takes the 6

7 lead in prosecuting the case, the whistle blower would receive at least 15 percent but not more than 33 percent of the proceeds of the action or settlement of the claim, depending on the extent to which the whistle blower and his counsel contributed to the prosecution of the action. b. If the state or political subdivision does not proceed with the action, the whistle blower would receive at least 25 percent but not more than 50 percent of the proceeds of the action or settlement. c. The balance of the action or settlement proceeds would go to the state or political subdivision that was defrauded by the false or fraudulent conduct alleged in the suit. 13. Does the Proposed Act Provide for Statutory Attorney=s Fees? Yes and they can go both ways. a. If the state, local political subdivision, or qui tam plaintiff prevails in or settles an action pursuant to the proposed Alabama False Claims Act, the qui tam plaintiff would receive an amount for reasonable expenses which the court finds were necessarily incurred, plus reasonable costs and attorney=s fees. All expenses, costs, and fees would be awarded against the defendant and under no circumstances shall the expenses, costs, and fees be the responsibility of the state or political subdivision. b. If the state or political subdivision declined to proceed with the action and the qui tam plaintiff proceeded on his own and lost, the court may award to the defendant reasonable attorney=s fees and expenses if the court 7

8 finds that the claim of the qui tam plaintiff was clearly frivolous, clearly vexatious or brought solely for purposes of harassment. 14. Does the Act Offer Any Protection for the Whistle Blower? a. Yes. The proposed Act provides that Ano employer may discharge, demote, suspend, threaten, harass, deny promotion to, or in any other manner discriminate against, an employee in the terms and conditions of employment because of lawful acts done by the employee on behalf of the employee or others in disclosing information to a government or law enforcement agency or in furthering a false claims action, including investigation for, initiation of, testimony for, or assistance in, an action filed or to be filed. b. An employer liable for such conduct shall be liable for all such relief necessary to make the employee whole, including reinstatement with the same seniority status that the employee would have had but for the discrimination, two times the amount of back pay, compensation for any special damages sustained as a result of the discrimination, and, where appropriate, punitive damages. In addition, the defendant shall be required to pay litigation costs and reasonable attorney=s fees. 15. Other States that Have False Claims Acts: a. Arkansas Ark. Code Ann. ' et seq. (2000) Medicaid Only 8

9 b. California Cal. Gov=t Code ' et seq. (Deering 2000) c. Delaware Del. Code Ann. Title 6, Sec et seq. (2000) d. D.C. D.C. Code Ann. ' et seq. (2000) e. Florida Fla. Stat et seq. (2000) f. Hawaii Haw. Rev. Stat. ' et seq. (2000) g. Illinois 740 Ill. Comp. State. Ann. ' 175/1 et seq. (2000) h. Louisiana La. Rev. Stat. Ann. ' 46:439.1 et seq. (2000) Medicaid only i. Massachusetts Mass Ann. Laws Ch. 12, ' 5(A)-(O). j. New Mexico House Bill 468 signed by Governor effective May 19, k. Nevada Nev. Rev. Stat. ' et seq (1999). l. Tennessee Tenn. Code Ann. ' et seq. (2000) Medicaid Only m. Texas Tex. Hum. Res. Code ' n. Utah Utah Code Ann. ' et seq. (2000) Medicaid Only o. Virginia Virginia Code Ann. Art. 19 ' et seq. effective January 1, 2003 Sample of State False Claims Act Cases State and Date Company Fraud Settlement or Judgement California, 1998 BankAmerica Improperly retained unclaimed municipal bonds $187 million California, 2000 Toshiba Knowingly sold defective computers to the State and its political divisions. $30 million 9

10 California, 2001 Tutor-Saliba- Perini JV Fraudulent billing during construction of Los Angeles Subway system $31.9 million California, 2003 Mandated Submission of inflated and false Cost Systems bills. Inc. $3.4 million Florida, 1996 CareFlorida Health Plan Inc Submission of fraudulent Medicaid enrollments. $ 1.75 Hawaii, 2001 Bergen Brunswig Corp. Wrongfully recycled and repackaged unused drugs from nursing homes facilities $4 million Texas 2001 Driscoll Children's Hospital and Foundation Filing false expense reports, reporting inflated charity work, and engaging in kickbacks. $14.5 million 16. Federal False Claims Act Statistics - (as reported by the Department of Justice for fiscal year ending September 30, $ Total amount recovered in Fiscal Year 2003 under the False Claims Act: $2,100,000, a 75% increase over FY $ Whistle Blower=s share of the rewards in FY 2003: $319,000,000. $ Total amount recovered under the False Claims Act since 1986: over $12,000,000,000. $ Whistle Blower's share of the rewards since 1986: Over $1,000,000,000. $ Total FCA amount recovered where there is an associated qui tam case, to date: $7,870,000,000. $ Total FCA amount recovered by DOJ in cases that DOJ entered or otherwise pursued: $7,510,000,000. $ Total FCA amount recovered by Whistle Blowers in cases declined by DOJ, to date: $362,000,000. $ Total number of qui tam cases filed to date: 4,281 10

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