If you witness fraudulent activity in your workplace and believe there may be grounds to report it – it’s essential that you fully understand the process first. Beginning a qui tam (whistleblowing) lawsuit is neither easy nor straightforward. Whilst the rewards offered are substantial (often 25-30% of the recovered amount if the government does not intervene) the process can be complicated and littered with limitations that may stop the lawsuit from ever getting off the ground.
As the consequences of beginning a lawsuit can be negative between the individual and the organization, it’s vital to understand your opportunities and limitations and how these differ from state to state. Having an experienced and well-equipped team at your side throughout this process ensures you proceed in the correct fashion, getting the correct result (and compensation) you deserve whilst limiting and protecting yourself from any potential negative consequences.
Here are 5 reasons you should hire a whistleblower law firm:
- To understand the limitation of your lawsuit before you begin
- Qui tam lawsuits are time sensitive
- Employer retaliation and protection
- Assistance in gathering evidence and drafting the lawsuit
- Having the support of an attorney throughout your lawsuit
1) Understanding the potential limitations of your qui tam Lawsuit
You may have witnessed a colleague or senior figure billing for unlicensed or unapproved drugs. Or someone in your organization is performing unnecessary medical procedures so that extra Medicare reimbursement can be claimed. Witnessing suspicious activity alone is not enough, you must understand who is involved and how the law in your state affects the actions you are about to take.
Some of the limitations to whistleblower lawsuits include:
- First to file act – brought in to promote efficiency and fairness. If the government is aware of another claim based on the same underlying facts and this is already pendin, your case will be barred. If you have spoken to anyone about what you have witnessed, it is essential you act quickly to ensure that your case can be taken forward.
- Restrictions to personnel – did you know that a false claims act cannot be initiated against a member of Congress or judiciary? Or that a current or historical member of the armed forces cannot enter into a whistleblowing lawsuit with the government? While these examples are aimed at specific types of claims, it pays to understand who you are initiating claims against and what your options are in your state.
- Public disclosure – the false claims act (FCA) was amended in 1986 to exclude suits that were proven to be based on publicly disclosed information (thus the relator not being the ‘original source’). This put increased dependencies on the individual to confidently demonstrate that they have specific and independent knowledge of the fraud. The change was made to prevent widespread lawsuits being raised based on information available to the public. Publicly disclosed case information can still be accepted if the relator can prove that they are the original source.
Other reasons you cannot file a whistleblower lawsuit:
- A relator cannot file if the person trying to file was convicted of criminal conduct from their role in FCA violation.
- You cannot file if there is another qui tam case filed for the same violation (so make sure you hire an attorney as soon as you suspect fraud).
- You cannot file if the government is “party to a civil or administrative money proceeding concerning the same conduct” – so if the government has already discovered this case and is pursuing it.
- You cannot file against any qui tam action based on information that has been disclosed to the public with the exception of when the relator was the original source of that information.
Without the advice of an attorney at hand, you could be at risk of entering into a costly process with negative consequences that never makes it to the point of trial. Or worse, a missed opportunity to claim compensation that goes to the others that have also witnessed the fraud.
2) Qui tam Lawsuits are time sensitive
Not only is your potential lawsuit subject to the ‘First To File’ act, but it is subject to a statute of limitations.
Simply put, you must report and begin proceedings within 3 years of becoming aware of the fraud (if you are the official with a responsibility to act) and an FCA action cannot be brought forward if more than 6 years have passed since the fraud was first committed (regardless of officials becoming aware).
Whilst years may seem like a long time, malicious activities often go unnoticed and you may be well within your time limits before you even think of raising a case. Even once suspicious behaviour is identified or records found, defining when the violation was committed becomes a new challenge.
An experienced attorney will be able to help you progress your case at speed and assist in identifying key dates and milestones from the evidence you have gathered.
3) Employer retaliation
An employer cannot retaliate against a person for reporting wrongdoing committed by that employer. However, when employees blow the whistle, they can lose their job, be demoted or suffer other adverse employment action. But states have created whistleblower protection laws to encourage whistleblowing.
There is no single protective law. Instead, there are many laws to provide protection. OSHA, for one, enforces 22 whistleblower laws. Laws protect whistleblowing violations of the Affordable Care Act, Sarbanes-Oxley, Clean Air Act, Safe Drinking Water and other federal laws. Some federal and state agencies protect only public employees. Other laws apply to a broad range of individuals in the state. Consult your attorney to see how you are protected. It’s important to check you are protected before your employer suspects your actions.
CHECK IF YOU ARE PROTECTED
The best way to check if you are protected is to consult with an employment attorney. A lawyer will be well versed in whistleblower protection laws and can advise you on which course of action to take if you have been retaliated against (or how to avoid retaliation).
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4) Assistance in gathering evidence and drafting the lawsuit
When compiling the information for your case, it’s important to understand the key drivers behind the government’s interests in whistleblowing. They are largely focused on understanding what harm they have been exposed to, how much money is involved in the fraud and what evidence you as an individual have to substantiate any claims you make.
To answer their questions and address their key concerns, you will need to collate and organize things such as:
- Recorded phone conversations
- Internal documents from your organization
- Notes on amounts of money involved
- Statements from potential witnesses
Understanding how to prioritize this information, organize it and present it in as persuasive a way as possible is where a whistleblower law firm comes in. There is no substitute for years of experience handling claims and compiling evidence. An individual may miss certain documents or order them in a way that has less impact. There are also specific legal documents required in specific formats, such as the Disclosure Statement.
The disclosure statement is often regarded as one of the most important documents in a qui tam case. A disclosure statement is required to contain all information available from the relator. It is used by the government to understand the full details of the case being brought forward, if it is something they wish to investigate further and if the relator can be confidentially outlined as the original source of the information. Compiling this incorrectly, specifically without legal opinion and insight, can harm or invalidate your case.
Next steps: How to start your claim [step-by-step guide] and much more – everything you need to know about whistleblower lawsuits.
Coxwell & Associates’ experience as a whistleblower law firm means we’re well placed to offer advice to people like you who may have witnessed fraudulent activity but are unsure of where to start. Our latest guide covers all the key terms, risks and checks you should make before you start your case. We’ll also explain exactly how to start your claim along with a step by step guide on how to complete it, with or without an attorney.
Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.