Deciding to file a False Claims Act (“FCA”) suit requires careful evaluation and planning. Here are 5 key pointers to guide your whistleblowing considerations:
1. The sooner you file your qui tam suit, the higher your chance of success.
This consideration stems from the FCA’s “first-to-file” rule, which encourages whistleblowers to promptly inform the government of fraud. The rule states that once a qui tam lawsuit is filed, subsequently filed qui tam suits alleging the same set of main facts will be barred (meaning, the subsequent suits will be prohibited from proceeding). The longer you wait to file, the higher the likelihood that someone else with similar knowledge will file first. Therefore, once you know or even suspect that you might want to file a qui tam suit, do not hesitate to contact an attorney to begin the process of evaluating your potential claim and the possibility of filing a suit.
2. Make sure you have specific, non-public knowledge of the fraud.
Successful qui tam suits generally cannot be based on speculation, so make sure that you can describe specific instances of fraud, ideally with evidence. But you should first consult an attorney before downloading or copying such evidence (i.e. emails or company documents) when possible. In addition, the information that forms the basis for your claims cannot already be available to the public. If the government already knows about the information, or has ready access to it, your claim may be barred by the FCA’s "public disclosure" rule. For example, if the fraud that you discovered was previously published in a government report or in the news, it is often considered publicly disclosed, and a claim based on it may be barred by the public disclosure rule unless you are an "original source" of the disclosed information.
3. Do not tell anyone about your whistleblowing process.
While it can be tempting to tell close friends and extended family about your plans to file a qui tam suit, refrain from doing so until the complaint is unsealed and available to the public. When you file an FCA complaint, it is first served upon the government under seal so the government can investigate the fraud without the defendant’s knowledge. After the government finishes its investigation (which lasts at least 60 days, often longer) and decides whether or not to intervene in the case, the lawsuit is typically unsealed and served on the defendant. By sharing information about your sealed FCA suit, the information could circulate and end up becoming publicly disclosed, which could bar your FCA suit.
4. Expect a lengthy process.
While most FCA cases settle before trial, this does not necessarily equate to a swift process. Depending on the scale of the allegations, the government investigation stage alone can take months or even years. After the investigation, FCA cases can be litigated for years, and the few cases that go to trial may undergo an appeals process. You should expect the whistleblowing process to last years, so make sure you are prepared.
5. The FCA does provide protections from retaliation for whistleblowers, but you may still experience retaliation for blowing the whistle on your employer.
If this happens, keep in mind that the FCA has an anti-retaliation provision that allows whistleblowers to seek damages in the event of retaliation. As a whistleblower, you do not necessarily have to prove fraud in order to receive the protections outlined in the FCA’s anti-retaliation provision, so make sure you inform your attorney of any retaliation.
Contact the Whistleblower Attorneys of Goldberg Kohn
If you are aware of fraud against the government, whether or not it relates to the opioid crisis, you may be eligible to blow the whistle in a False Claims Act lawsuit. For more information, either call Goldberg Kohn at 312-284-3258 or contact us online for a free, confidential consultation. Read about our successes pursuing False Claims Act cases.