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Do I Have Enough Information To Be a Whistleblower?

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If you have information about fraud being committed against the government, you might be considering whether you have enough information to state a claim under the False Claims Act. It can be challenging to know whether you have enough information to bring a qui tam suit, but generally, you need to meet the following requirements to successfully file a claim under the False Claims Act:

1. Information about Fraud Against the U.S. Government

If you have information to support your belief that fraud is being perpetrated against the U.S. government – for example, in contracts or programs involving the U.S. military, government health care programs, federally funded education or other government programs – you may be able to state a claim under the False Claims Act.  Your information might come from witnessing the fraud firsthand as an employee of the company committing the fraud.  For instance, you might work for a military contractor manufacturing equipment for the U.S. military and discover that your employer is willfully and knowingly replacing elements of the equipment in violation of a contract.  Alternatively, you might be a nurse at a hospital who witnesses physicians at your hospital regularly billing Medicare or Medicaid for services that were not provided. 

It is helpful to have evidence of the fraud you witness – such as documents or emails – if you do not, you may still be able to pursue a claim but it might be more difficult.  If you do not have any information about the fraud, or cannot gather evidence of the fraud, and it is based only on your own speculation, it is unlikely you will be able to state a claim under the False Claims Act.  Additionally, if the information you have does not defraud government programs, you may not have a claim under the False Claims Act.  Nevertheless, you may still have a claim under the IRS orother whistleblower programs.

2. The Information is Not Publicly Available

Under the False Claims Act, a person cannot pursue an action based on information that is "publicly disclosed" unless they have knowledge that is independent of, and materially adds to the publicly disclosed information.  If you only learned of the fraud on the government by reading it in the news, or seeing it on TV, you cannot file a claim under the False Claim Act.  If, however, you learned of the fraud through your employment (i.e., by serving in a management position and witnessing irregularities in the way government contracts are treated), or some other inside source, the fraud likely has not been publicly disclosed and you may have a claim. Information you gain as an employee is generally not readily available any other way and might be valuable to the government.

3. Timely Information

If you think you may have evidence of fraud against the government, you should act quickly. Pursuant to the False Claims Act's "first-to-file" rule, once a qui tam suit is filed, later qui tam suits alleging the same essential facts, or the same fraudulent scheme, are barred.  Accordingly, if someone else files a whistleblower, or qui tam, suit before you based on the same material facts, you might be prevented from pursuing your claim and receiving any monetary award under the qui tam provision of the False Claims Act.  While the "first-to-file" rule might seem harsh, its purpose is to encourage whistleblowers to alert the government to fraud promptly upon learning that the government is being defrauded.

In addition, if you do not act quickly in pursuing your claim, your case may be affected by the statute of limitations. For these reasons, you will not want to delay. If you think you may have information, contact a whistleblower attorney to protect your claim and to initiate the process of filing a qui tam lawsuit.

4. Follow the Rules

In order to successfully pursue a claim under the False Claims Act, in addition to having useful information, you need to ensure your lawsuit is filed first and that it is filed correctly. Under the False Claims Act, a qui tam complaint must be filed in accordance with specific guidelines and procedures.  For example, you must ensure that the government is served correctly, that the complaint is filed under seal and that all other requirements of the False Claims Act are met. Small mistakes can lead to a dismissal of the lawsuit, which is why many whistleblowers elect to work with an experienced attorney.

If you’d like to discuss your situation with a team experienced in working with whistleblowers, contact Goldberg Kohn to schedule a free and confidential consultation. Your consultation is protected and your identity will not be revealed. The team at Goldberg Kohn can review your situation and determine whether your information can be used to file a claim. If you decide to file a claim, the team at Goldberg Kohn can work to protect you and to secure the portion of the award you may be entitled to. Contact Goldberg Kohn today for your free consultation.

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Email: whistle@goldbergkohn.com

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