Our whistleblower plaintiff attorneys explain how the legal process works
Violations of the False Claims Act cost taxpayers billions of dollars each year. This is why private individuals, or whistleblowers, who report fraudulent spending of governing funding serve such a valuable role in our society.
Each year, the federal Government recovers billions of dollars in fraudulent activity involving federal funds, often thanks to False Claims Act lawsuits initiated by individual whistleblowers – not the Government. Last fiscal year alone, the U.S. Department of Justice recovered more than $2.2 billion in settlements and verdicts as a result of False Claims Act lawsuits involving fraud and corruption of government funds for the fiscal year ending Sept. 30, 2020, according to the U.S. Department of Justice.
“The continued success of the department’s False Claims Act enforcement efforts are a testament to the dedication of the civil servants who pursue these important cases as well as to the fortitude of whistleblowers who report fraud,” Acting Assistant Attorney General Clark said in the U.S. Department of Justice announcement.
Whistleblowers – private individuals – filed 672 complaints nationwide last fiscal year involving Government fraud, according to the U.S. Department of Justice. In exchange, these individuals who came forward as whistleblowers received a portion of the money recovered by the federal Government for their efforts. This is due to the False Claims Act “qui tam” provision, by which a whistleblower, i.e., a person (legally known as a “relator” or plaintiff in a False Claims Act lawsuit) normally receives 15 to 30 percent of the money recovered by the federal Government from the defendant (the company committing fraud against the Government and the focus of the False Claims Act lawsuit and investigation).
So how does a private individual or whistleblower file a False Claims Act lawsuit? What is the legal process? Below, you can learn more about how the system works from an experienced whistleblower plaintiff attorney who handles such cases throughout the country and represents whistleblowers.
How do I file a False Claims Act lawsuit?
Under the False Claims Act, nearly anyone can file a lawsuit (known as a “qui tam” action) if they have material evidence of fraud against the Government. Often, the whistleblower is a current or former employee of the defendant. The current or former employee files a lawsuit against their current or former employer as a qui tam relator, meaning the suit is filed on behalf of the Government itself. Contractors and subcontractors also can file such lawsuits, provided they have direct non-public knowledge of wrongdoing.
Filing a False Claims Act lawsuit (also known as a “qui tam” action) is a very detailed and time-consuming process. No 2 cases are the same. Different cases might involve different steps depending on whether the whistleblower case involves healthcare fraud or other types of Government contractor fraud. It’s important to keep in mind that the legal process invariably spans a period of years, not just months.
In general, a qui tam lawsuit involves the following steps:
- Prepare evidence – It’s important that you have direct, non-public evidence of government fraud or corruption when filing a False Claims Act lawsuit. Evidence may include receipts, falsified documents, emails, or other written materials documenting fraudulent activity. Generally, an employee may not use evidence that he or she was not entitled to possess in the first place. If you have access to materials at your place of employment and you are not sure what your legal obligations and responsibilities are, you exercise caution and consult with a whistleblower plaintiff attorney before you start trying to do your own investigation.
- Meet deadlines – Deadlines in any area of the law can be extremely complicated, confusing, and difficult to determine, but there is always a limit to how long you have before filing any suit, including a qui tam lawsuit. Under the False Claims Act, there are various deadlines (known as the statute of limitations) which generally range from three years to six years. A whistleblower has six years from the time of a False Claims Act violation, to file suit for the Government fraud. A whistleblower has three years to bring a retaliation lawsuit against his or her employer if they suffer adverse employment consequences for reporting the fraud or trying to stop it. The bottom line is this: whistleblowers should talk to an experienced whistleblower attorney as soon as possible.
- File a lawsuit – A False Claims Act lawsuit (often referred to as a qui tam case) is filed in federal district court since cases involve violations of federal law. The False Claims Act requires the lawsuit to be filed by an attorney and under seal. This means that the lawsuit is strictly confidential and any violation of confidentiality will usually be fatal to the case. However, False Claims Act cases are always unsealed at some point. Once the case is unsealed, the whistleblower’s identity is no longer confidential and all his or her allegations are made public.
- File the first (and only) lawsuit – Another important part of the False Claims Act and qui tam law is you must be the first person to file a whistleblower complaint in order to be eligible to receive a percentage of the proceeds of the settlement or judgment ultimately obtained in the case. This is due to the False Claims Act’s first-to-file rule. Under this rule, only the first person who files a complaint for a specific allegation of Government fraud or corruption is eligible to receive a portion of the proceeds as a reward for reporting wrongdoing. If you are the second or subsequent person to report a specific allegation, you are not eligible to receive any portion of the money recovered on behalf of the Government.
- Remain anonymous . . . until the case is “unsealed” – When filing a qui tam action in federal district court, your lawsuit must be filed “under seal.” This means you must remain anonymous and the lawsuit must remain confidential in accordance with the Federal Rules of Civil Procedure. If you violate these rules, your whistleblower complaint and False Claims Act lawsuit may be dismissed. However, this can be confusing because False Claims Act cases are always unsealed at some point. Once the case is unsealed, the whistleblower’s identity is no longer confidential and all his or her allegations are made public.
- Notify the Government – When the qui tam lawsuit is filed, the whistleblower’s lawyer provides a copy of it and the evidence you have in support of your case, to the U.S. Attorney General’s office and the U.S. Attorney in the district where the lawsuit has been filed.
- Government investigation – After the federal government has been notified that a whistleblower complaint has been filed, the Government normally investigates the allegations. Typically, the Government will interview the whistleblower. Investigations are normally conducted by the Government agency directly affected by the misappropriation of Government funds. There will also be an independent investigation conducted by the U.S. Department of Justice. During this time, the defendant is not normally notified or made aware of the specifics of the pending lawsuit. That's because the whistleblower complaint remains under seal during this period.
- Government response – The federal government has at least 60 days from the date the sealed suit is filed to decide whether to intervene, meaning take over the case in whole or in part, or whether to let the whistleblower and her attorney proceed with the case. In most instances, the Government does not intervene. This usually means that the whistleblower and the whistleblower’s attorney are free to decide whether to drop the case or proceed with the case without the Government’s direct involvement; i.e., whether to proceed as an individual qui tam “relator.” Either way, the case will then be unsealed and the whistleblower’s identity and allegations will be public and no longer confidential. Additional time can range from a few additional months or even a year or more.
- Serve the defendant – Once the case is unsealed, the defendant is served with process or formally notified of the qui tam lawsuit. That means the defendant is provided with a written copy of the lawsuit or complaint against them. When the defendant is notified of the suit through service of process, the whistleblower’s identity is known to the defendant. This is one reason it’s so important to talk to an attorney early on so that you can be prepared for such a situation and the possible ramifications of your identity being revealed.
- Defendant responds – There are many different ways a defendant can respond to a whistleblower complaint. Usually, the defendant will file a motion to dismiss the lawsuit. The whistleblower’s lawyer responds to that motion and assuming the case isn’t dismissed, the defendant files an answer and the parties engage in pre-trial discovery (depositions, document subpoenas, etc.).
- Resolution – Once the pre-trial discovery and motions are completed, the typical qui tam lawsuit is settled out of court. Occasionally, the case cannot be settled and is tried to a court or jury.
Whatever the details of your particular False Claims Act lawsuit, make sure you follow the rules and regulations. Be prepared for any legal obstacle you may encounter along the way. Hire an experienced whistleblower plaintiff attorney who can work with you to prepare and file the strongest possible legal case.
Over many years, knowledgeable lawyers at Brewer & Pritchard, P.C. in Houston have helped numerous individuals successfully bring qui tam suits in state and federal courts. Lawyers at Brewer & Pritchard, P.C. have been representing clients for more than 30 years. J. Mark Brewer has more than 40 years of experience handling legal matters in Texas and nationwide. He has a solid understanding of False Claims Act lawsuits. As your attorney, he can help you determine whether you have what’s needed to successfully bring a False Claims Act case. He can file a lawsuit on your behalf with the appropriate federal or Texas district court.
Give your qui tam lawsuit the greatest opportunity for success. Contact J. Mark Brewer at our law firm. Fill out our online inquiry form and schedule a confidential appointment. We respect your privacy while you and we decide whether to form a formal, attorney-client relationship, and we will do everything we can to protect your rights.
Attorney Fees and Expenses: We accept cases on both a contingency fee basis and an hourly fee basis. Either way, we generally do not advance any of the expenses or costs for bringing a case. This means that our client is responsible for the payment of case-related expenses, as those expenses accrue, and the payment of such expenses is not contingent on the results or outcome of the case.
Important note: Nothing in this website constitutes legal advice or evidence of an attorney-client relationship. No attorney-client relationship is formed merely by contacting J. Mark Brewer or Brewer & Pritchard, P.C. Although our preliminary discussions are normally protected by the attorney-client privilege, no attorney-client relationship is created until we have verified that there is no conflict of interest, and also, until both lawyer and client have so agreed in writing to the representation. At Brewer & Pritchard, P.C., we do this with a formal agreement, signed by both attorney and client, outlining the scope of the legal services that we will provide you and the basis for the payment of our fees and expenses.