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False Claims Act cases contain unique procedural requirements that can deny recovery to the Relator even if the Relator uncovered the fraud and reported it to the government through counsel.

We work with lawyers representing whistleblowers to help them use the powerful remedies offered by the False Claims Act without running afoul of its unique procedural requirements.

Please call us before you file your complaint. You should associate with experienced Qui Tam practitioners who know the law and the Department of Justice procedures in order to best serve your client’s interest.

Procedural Pitfalls

Cases filed under the False Claims Act are procedurally different from most litigation in a number of respects, including:

Generally, only the Relator who is the first to file and the original source of the disclosure of fraud can share in the recovery.

The complaint must be served on the government, although in some cases the government must be notified before filing the complaint.

The complaint must NOT be served on the defendant.

The complaint must be filed under seal.

The complaint must be supported by a separate, comprehensive memorandum, not filed in court, but served on the government, usually detailing the factual underpinnings of the complaint, together with copies of all relevant documents.

Failure to follow these unique statutory requirements can result in dismissal of the action.

What is Actionable Under the FCA?

Claims that are falsely presented to the Government for payment are actionable under the False Claims Act. The FCA covers a government contractor/provider who:

Knowingly presented or caused to be presented a false or fraudulent claim for payment or approval to an officer or employee of the government;

Knowingly made, used, or caused to be made or used, a false record or statement to get a false or fraudulent claim paid by the government;

Conspired to defraud the government by getting a false or fraudulent claim allowed or paid; or

Knowingly made, used or caused 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, ("reverse false claim").

Note: a claim is "knowingly" made if 1) there is actual knowledge, or 2) deliberate indifference to the truth or falsity, or 3) reckless disregard of the truth or falsity.

What is not Actionable Under the FCA?

Certain actions against State agencies and armed forces members, members of Congress, members of the judiciary, or senior executive branch officials;

Claims, records or statements made under the Internal Revenue Code;

Suits based upon allegations or transactions that are already the subject of a civil suit or administrative money penalty proceeding to which the government is already a party;

Cases based upon allegations or transactions that have been publicly disclosed unless the Relator has direct and independent knowledge of those allegations or transactions, and has provided the information to the government prior to filing suit (or earlier in some Circuits);

Mismanagement by government contractors that does not rise to the level of knowingly-made false statements to the government for purpose of getting a claim paid;

The government’s own ineptitude or waste, (only those who have made false claims to the government are proper defendants under the statute).

What Will We Do?

We have litigated cases with United States attorneys across the country and are able to assist you in a variety of ways. If you associate with one or more of us, we will help you:

Research complex laws and regulations to determine if there is a violation;

Prepare an investigation plan to assemble documented factual information necessary to properly support the claim of fraud with the specificity and particularity required under the Federal Rules of Civil Procedure;

Assemble a team of lawyers, and, if appropriate, investigators, experts and other professionals who can analyze your case, conduct a thorough factual and legal review, including the underlying contractual or regulatory framework;

Select the proper forum for filing the case under the broad venue selection provisions of the False Claims Act;

Provide the government with a comprehensive roadmap of the legal and damages theories;

Prepare your client to be focused and responsive to the government investigators;

Provide investigators with assistance and input within the ethical parameters in the jurisdiction with respect to, among other things, ex parte contacts with employees or ex-employees of potential defendants;

Cooperate with you, in division of fees, as permitted by ethical rules.

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