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The decision whether or not to file a whistleblower claim can be very difficult, but it is one of the most effective ways to fight fraud.

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. In order to assess whether you may have a False Claims Act case, you should consider the following questions:

1. Did the wrongful conduct cause a governmental entity to lose money?

The purpose of the False Claims Act is to help the government recover money it should have never paid, money that it overpaid, or money that was wrongfully withheld from the government.  If the wrongful conduct does not involve the government, you do not have a claim under the False Claims Act.

2. Is the information publicly available?

The False Claims Act is designed to encourage people to report fraud that might otherwise go undetected. 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 the information you have has not been publicized, you may have a case.

3. Do you have reliable information about the wrongful conduct?

Many whistleblowers are current or former employees, but this is not a requirement. Anyone who has specific knowledge of wrongdoing can be a whistleblower. The most successful whistleblowers are able to verify the wrongful conduct they are reporting, either because they saw it happen, or because they had access to documents that can prove it.

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.

4. How long ago did the conduct take place?

In most cases, a lawsuit under the False Claims Act must be filed within six years of when the wrongful conduct took place, although in certain cases you might have up to ten years. The False Claims Act's statute of limitations provision, 31 U.S.C. § 3731(b) states that:

A civil action under section 3730 may not be brought—

  • more than 6 years after the date on which the violation of section 3729 is committed, or
  • more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.

5. Has anyone else filed a whistleblower, or qui tam, suit before you on the same material facts?

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.

Contact a False Claims Act Attorney

It can be difficult to assess whether you can state a whistleblower claim, especially if you do not have a background in the law. That is why talking to an experienced whistleblower lawyer is the best first step to take.

The whistleblower attorneys at Goldberg Kohn are very familiar with cases brought under the False Claims Act. Our experience speaks for itself—learn more about our landmark victories and settlements here. If you require assistance in evaluating the strengths and weaknesses of your claim, call Goldberg Kohn at 312-284-3258 or contact us online. We are always willing to provide you with a free, confidential consultation to discuss a possible case.