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Federal False Claims Act and Qui Tam Litigation

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Joel M. Androphy, Rachel L. Grier


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Cited by the U.S. District Court for the District of Columbia

In recent years, whistleblower lawsuits have led to billions of dollars in judgments and settlements, debarment from government contracts, and criminal prosecutions as the government and the public seek to root out fraud and abuse. In 2010, the Dodd-Frank Act created a new Securities and Exchange Commission Whistleblower Program, imposed a three-year statute of limitations on FCA retaliation actions, and expanded protections for whistleblowers.

Federal False Claims Act and Qui Tam Litigation book and CD is a unique guide to this vital area. Unlike many treatises that focus solely on the plaintiff whistleblower or “relator,” this book provides detailed, comprehensive coverage of the interests of all the participants in qui tam cases—the relator, the defendant corporation, the federal and state governments, and the courts. It also provides state-of-the-art analysis of the latest cases and whistleblower statutes, federal, state and municipal.

Topics include: evaluating the merits of a potential action; determining whether the relator would be barred or restricted from any recovery for retaliation; for plaintiffs, locating a favorable judiciary and an aggressive prosecutor's office; for defendants, anticipating, preventing and responding to litigation; determining whether a claim is material; theories of liability under the FCA; government indifference or concurrence with erroneous certification; assessing an appropriate relator's share of any recovery; parallel criminal actions; and more.

Each chapter concludes with detailed analysis of the strengths and weaknesses of significant cases for the relator, the defense, the government and the judiciary. This is a book that will help all parties understand and master the challenges of this important and growing field.

Includes a CD-ROM containing forms and pleadings; guidances and government memoranda; U.S statements of interest; and federal and state statutes and forms.

Book #00681; looseleaf, one volume, 991 pages and one CD-ROM; published in 2011, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-133-0.


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 991
  • ISBN: 978-1-58852-133-0
  • Pub#/SKU#: 681
  • Volume(s): 1
  • CDs: 1

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  • Joel M. Androphy

Joel M. Androphy is a partner in Berg & Androphy in Houston, Texas. He has extensive involvement in prosecuting national qui tam litigation cases. He served as lead whistleblower's counsel in a qui tam settlement with King Pharmaceuticals that netted the government and whistleblower about $119 million, and with Pfizer that netted the government and the whistleblower about $46 million, both involving best price and Medicaid fraud issues. As lead counsel and without government intervention, he also settled a case with Rotech Healthcare involving Medicare billings for durable medical equipment. He also settled a military case involving the alteration of expiration data on food products sent to American troops in the Middle East. The settlement netted the client and government about $13.2 million. He recently represented one of the nine whistleblowers in the record setting Eli Lilly qui tam civil lawsuit, an off-label Medicaid fraud marketing case, that netted the government and all whistleblowers about $750 million in civil fines and an additional $600 million in criminal fines for the government. Androphy is also lead counsel in numerous pending national qui tam cases and tax law prosecutions. Androphy also has extensive involvement defending white-collar cases across the country including securities fraud, foreign corrupt practices, health care fraud, environmental crimes, government procurement, and public corruption. A former adjunct law school professor in white collar crime at University of Houston Law Center and South Texas College of Law, Androphy has written more than sixty articles in numerous legal journals, and lectured across the country in over eighty seminars. He is also the author of a six-volume treatise, White Collar Crime, a practice guide for both civil and criminal lawyers.

Mr. Androphy began his career as a law clerk to The Honorable Norman W. Black, late Chief Judge, United States District Court, Southern District of Texas. He has served as the President of the Houston Chapter of the Federal Bar Association, an officer and director of the Houston Bar Association, and editor of the Texas Bar Journal and the Houston Lawyer legal magazine. Mr. Androphy has received two presidents awards for his service to the Houston Bar Association, including pro bono work, and has served on federal judicial Merit Selection Committees. He is a past member of the Board of Directors of the State Bar of Texas and the Texas Commission for Lawyer Discipline. He is listed in the publication Best Lawyers in America, and has been selected as a super lawyer by Texas Monthly (the top 100 lawyers in Texas) and a top lawyer by Houston Magazine. In September 2009, the Houston Press named Androphy the Best Civil Attorney in the 2009 Best of Houston® publication. Mr. Androphys cases have appeared in the New York Times, The Wall Street Journal, People Magazine, The National Law Journal, and other major news publications. He is the legal commentator for ABC-Houston, and a frequent commentator for MSNBC, CNBC, and Bloomberg News.



Author Image
  • Rachel L. Grier

Rachel L. Grier is an associate at Berg & Androphy in Houston, Texas. She has a strong scientific background, having worked as a research assistant at M.D. Anderson Cancer Center before attending law school.  She has worked primarily on qui tam cases and other civil litigation, as well as white collar criminal defense. She is currently working on several qui tam suits, many still under seal, involving healthcare subjects such as off-label marketing, kickbacks, marketing the spread, and best price violations, pending in jurisdictions across the United States. Ms. Grier served as counsel for several qui tam cases, involving healthcare billing matters and government contracting issues, which resulted in settlement. Ms. Grier was recently appointed Vice Chair, Publication Book Editorial Board, for the 2014-2015 year for the Health Law Section of the American Bar Association. 



Table Of Contents
CHAPTER 1
Scope and Introduction
§ 1.01  Introduction
§ 1.02  Significant Monetary Recoveries in Civil and Criminal Actions
§ 1.03  Debarment under the FCA
§ 1.04  Criminal Imprisonment
§ 1.05  Penalties
§ 1.06  Relator’s Recovery
CHAPTER 2
History of the False Claims Act
§ 2.01  An Overview of the FCA
§ 2.02  A Historical Perspective of the Informer’s Role
§ 2.03  Why History Is Important
§ 2.04  Lincoln’s Law
[1]  The Statute
[2]  Why It Passed
[a]  Historical Criticisms
[b]  Significant Decisions
[c]  Frequency of Filings
[3]  Mens Rea
[4]  Penalties and Damages
[5]  Relator Recovery
[6]  Statute of Limitations
[7]  Burden of Proof
§ 2.05  1943 Amendments
[1]  The Statute
[2]  Why It Passed
[a]  Historical Criticisms
[b]  Significant Decisions
[c]  Frequency of Filings
[3]  Mens Rea
[4]  Statutory Amendments
[a]  Government Knowledge Bar
[b]  Penalties and Damages
[c]  Relator Recovery
[d]  Statute of Limitations
[e]  Burden of Proof
§ 2.06  1986 Amendments
[1]  The Statute
[2]  Why It Passed
[a]  Historical Criticisms
[i]  Increase in Fraud
[ii]  Difficulty in Detecting Fraud
[iii]  Infrequency of Reporting
[iv]  Inadequate Investigative Tools
[b]  Significant Decisions
[i]  Actual Knowledge and Corporate Blindness
[ii]  Burden of Proof
[iii]  Government Knowledge Bar
[c]  Frequency of Filings
[3]  Mens Rea
[4]  Statutory Amendments
[a]  Public Disclosure Bar
[b]  Whistleblower Protections
[c]  Penalties and Damages
[d]  Relator Recovery
[e]  Attorney’s Fees
[f]  Statute of Limitations
[g]  Burden of Proof
[h]  Civil Investigative Demands
[i]  Conclusion
§ 2.07  2009 FERA Amendments
[1]  The Statute
[2]  Why It Passed
[3]  Statutory Amendments
[a]  Subcontractor Liability
[b]  Retroactivity
[c]  Materiality
[d]  Conspiracy
[e]  Overpayments
[f]  Relief from Retaliatory Actions
[g]  Relation Back Doctrine and Statute of Limitations
[h]  Civil Investigative Demands
§ 2.08  The Patient Protection and Affordable Care Act and The Health Care and Education Reconciliation Act of 2010
[1]  Anti-Kickback Statute
[2]  Public Disclosure Bar and Original Source
[a]  Public Disclosure Bar
[i]  State, Local, and Private Party Proceedings
[ii]  Government Opposition to Dismissal
[b]  Original Source
[3]  Overpayments
§ 2.09  Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
CHAPTER 3
What Constitutes a Claim
§ 3.01  Introduction
§ 3.02  Types of “Claims”
[1]  Direct False Claim Theory
[2]  False Certification Theory
[a]  Express False Certification Theory
[b]  Implied False Certification
[c]  Condition of Payment Versus Condition of Participation
[3]  Promissory Fraud
[4]  Inherently False Claims
§ 3.03  Materiality
[1]  “Natural Tendency”
[2]  “Actual Effect”
[3]  Unresolved Materiality Standard
§ 3.04  Perspectives
[1]  Relator Perspective
[2]  Defendant Perspective
[3]  Government Perspective
[4]  Judicial Perspective
[5]  Current Thoughts
CHAPTER 4
Substantive Violations
§ 4.01  Mens Rea and Required Proof
[1]  Knowingly
[a]  Actual Knowledge
[b]  Deliberate Ignorance or Reckless Disregard
[c]  Negligence
[d]  Presenter Knowledge
[2]  False or Fraudulent
[a]  The Role of Ambiguity
[b]  Duty to Inquire
§ 4.02  Government Knowledge Defense
§ 4.03  Theories of Liability
[1]  Presents a False Claim: Section 3729(a)(1)
[2]  Use of a False Record: Section 3729(a)(2)
[a]  Majority View
[i]  Elements
[ii]  Pleading and Proof Requirements
[b]  Minority View
[i]  Elements
[ii]  Pleading and Proof Requirements
[c]  Damages
[i]  No Actual Damages Required
[ii]  No Multiple Recovery
[3]  Conspiracy: Section 3729(a)(3)
[a]  Elements
[b]  Pleading and Proof Requirements
[c]  Damages
[d]  Statute of Limitations
[4]  Delivery of Less Property: Section 3729(a)(4)
[a]  Elements
[b]  Pleading and Proof Requirements
[5]  False Receipts: Section 3729(a)(5)
[a]  Elements
[b]  Pleading and Proof Requirements
[6]  False Purchase: Section 3729(a)(6)
[a]  Elements
[b]  Pleading and Proof Requirements
[7]  Reverse False Claims: Section 3729(a)(7)
[a]  Elements
[b]  Pleading and Proof Requirements
[c]  Damages
§ 4.04  Perspectives
[1]  Relator Perspective
[2]  Defendant Perspective
[3]  Government Perspective
[4]  Judicial Perspective
[5]  Current Thoughts
CHAPTER 5
Healthcare Fraud Cases Under the FCA
§ 5.01  Introduction
§ 5.02  Fraudulent Billing
[1]  Treatment Issues
[a]  Total Neglect or No Services Provided
[b]  Worthless Services
[c]  Inadequate Services
[d]  Standard of Care
[e]  Aggressive Treatment
[2]  Misrepresentation of Credentials
[3]  Upcoding or Improper Coding of Goods and Services
[4]  Bundling and Unbundling Procedures
[5]  Misrepresentation of Patient Population Data
[6]  Retention of Overpayments
§ 5.03  Anti-Kickbacks and Self-Referrals
[1]  Anti-Kickback Statute
[a]  Pharmaceutical Benefit Managers
[b]  Performance-Based Discounts
[c]  Healthcare Provider Acquiring Medical Practice in Violation of AKS
[d]  Government and Industry Guidelines on Remuneration
[i]  Statutory Definitions
[ii]  OIG’s Perspective: Risky Behaviors
[iii]  Applicable Industry Standards
[iv]  Safe Harbor Provisions
[v]  Problematic Remuneration Analysis
[2]  Self-Referrals
[a]  Refund Obligations
[b]  Self-Disclosure Protocol
[c]  Physician-Owned Hospitals
§ 5.04  Best Price
[1]  Definition of Best Price
[2]  Key Players
[3]  Calculation of “Best Price”
[a]  Calculation of the Basic Rebate
[b]  Calculation of Any Additional Rebate
[c]  Calculation of the Unite Rebate Amount
[4]  The Role of “Best Price” in Defrauding the Government
[5]  New Best Price Calculations
[a]  Single Source Drugs
[b]  Multiple Source Drugs
§ 5.05  Best Value: Capital Medical Equipment
[1]  Background
[2]  Manufacturer’s Failure to Provide Accurate Pricing Information
[3]  Manufacturer’s Fraud Involving the Coding and Configurations System
§ 5.06  Off-Label Marketing
[1]  Medicare and Medicaid Off-Label Drug Reimbursement
[a]  Drug Coverage under Medicare
[b]  Drug Coverage under Medicaid
[i]  Medically Accepted Indication
[ii]  State Drug Formularies
[iii]  Prior Authorization
[2]  FDA Regulation of Prescription Drugs
[3]  Misbranding of Prescription Drugs
[4]  FDA Regulation of Manufacturers’ Marketing of Prescription Drugs
[a]  1996 FDA Guidances on Reference Texts and Reprints
[b]  2009 FDA Guidance on Good Reprint Practices
[c]  1997 FDA Guidance on Manufacturer Support of CME Activities
[d]  Food and Drug Administration Modernization Act
[e]  2008 FDA Draft Guidance on Good Reprint Practices
[f]  Pharmaceutical Companies’ Defense of Off-Label Promotion
§ 5.07  Submission of Claims for Defective Medical Devices
[1]  Federal and State Laws Require Medical Devices to Be Safe, Reliable, and Effective
[2]  Defective Medical Equipment Fraudulently Inflates Medicare and Other Federal- and State-Funded Health Program Reimbursements
§ 5.07A Privacy Concerns in Healthcare Fraud Cases
[1]  Privacy Regulations Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA)
[2]  HIPAA Concerns in Qui Tam Cases
[3]  Qui Tam Suits Based on HIPAA Violations
§ 5.07B Manufacturing Standards
[1]  Current Good Manufacturing Practices (cGMPs)
[2]  Adulterated Drug Prohibition
§ 5.08  Perspectives
[1]  Relator Perspective
[a]  Uncertain Government Participation
[b]  Most Winnable Fraud Allegations
[c]  Medicaid and Medicare Off-Label Drug Reimbursement
[d]  Off-Label Marketing and FCA Violations
[e]  Pharmaceutical Anti-Kickback Statute Violations and FCA Liability
[f]  Pharmaceutical Compendia and Off-Label Marketing
[2]  Defendant Perspective
[3]  Government Perspective
[4]  Judicial Perspective
[5]  Current Thoughts
CHAPTER 6
Other Kinds of Fraud Cases Under the FCA
§ 6.01  Government Procurement Fraud
[1]  Generally
[2]  Defense Industry
[a]  History of FCA Enforcement
[b]  Decline in FCA Cases
[c]  Current Enforcement
[i]  False Product Information Cases
[ii]  Mischarge Cases
[iii]  Federal Acquisition Regulation
§ 6.02  Environmental Regulation
[1]  Problems in Enforcing Environmental Regulations and Private Lawsuit Limitations
[2]  Government Contract Fraud and Environmental Law Violations
§ 6.03  Financial Services Industry
§ 6.04  Oil, Gas, and Mining
§ 6.05  Scientific Research
§ 6.06  Education Fraud
§ 6.07  U.S. Customs Duties
§ 6.08  Prevailing Wage Laws and the False Claims Act
§ 6.09  Perspectives
[1]  Relator Perspective
[2]  Defendant Perspective
[3]  Government Perspective
[4]  Judicial Perspective
[5]  Current Thoughts
CHAPTER 7
Protection from Retaliation
§ 7.01  Overview of a Cause of Action
§ 7.02  “Any Employee” Defined
[1]  Employees Responsible for Investigating Fraud
[2]  Independent Contractors
[a]  Found to Be an Employee
[b]  Found to Be an Independent Contractor
[3]  Federal Government Employees
[4]  State Government Employees
[5]  Local Government Employees
§ 7.03  “Discriminated Against” Defined
§ 7.04  “Employer” Defined
[1]  General Construction of “Employer”
[2]  Corporate Shield Exception
[3]  Government Employers
§ 7.05  Protected Activity: Lawful Actions “in Furtherance of” an FCA Claim
[1]  Relator Engaged in Protected Activity: Circuit Court Views
[a]  Investigation That Reasonably Could Lead to a Viable FCA Action
[b]  Litigation Is a Distinct Possibility
[c]  Good Faith and Objectively Reasonable Belief
[d]  Causal Connection
[2]  Relator Did Not Engage in Protected Activity
[3]  Shifting Burdens Once a Prima Facie Case for Retaliation Is Made
§ 7.06  Employer Knowledge Prerequisite
[1]  Two-Pronged Approach
[a]  Employer Knowledge
[i]  Informing Employer of “Fraudulent and Illegal” Activity
[ii]  Performing Duties Outside Normal Job Responsibilities
[b]  Retaliation Motivated by Employee Engaging in Protected Activity
 [2]  Employees Responsible for Investigating Fraud
§ 7.07  Damages
[1]  Double Back Pay
[2]  Other Damages
[a]  Damages for Emotional Distress
[b]  Special Damages
[c]  Loss of Qui Tam Damages
§ 7.08  Preliminary Injunctive Relief
§ 7.09  Statute of Limitations
§ 7.10  Perspectives
[1]  Relator Perspective
[2]  Defendant Perspective
[3]  Government Perspective
[4]  Judicial Perspective
[5]  Current Thoughts
CHAPTER 8
Jurisdiction, Venue, and Other Threshold Issues
§ 8.01  Jurisdiction and Venue Generally
§ 8.02  Federal Court Proceedings
[1]  Personal Jurisdiction
[2]  Subject Matter Jurisdiction
[3]  Supplemental Jurisdiction over State Law Claims
[a]  Common Law Claims
[b]  Contract Disputes
§ 8.03  Multidistrict Litigation
§ 8.04  State Court Jurisdiction
§ 8.05  Concurrent Proceedings
[1]  Criminal
[a]  Concurrent Use of Information in Parallel Proceedings
[b]  Qui Tam Investigation May Forewarn Defendant of Criminal Investigation
[c]  Collateral Estoppel
[2]  Bankruptcy
[a]  Automatic Stay
[i]  Pecuniary Purpose Test
[ii]  Public Policy Test
 [b] Discretionary Stay
[3]  Federal Agency Proceedings
[a]  Rejection of Primary Jurisdiction
[b]  Exercise of Primary Jurisdiction
§ 8.06  Venue
[1]  District Court Venue
[a]  Where Defendant May Be Found
[b]  Where Defendant Transacts Business
[c]  Where Defendant Commits Acts
[2]  Alien Venue Act
[3]  Transfer of Venue
[4]  Curing Defective Venue
[5]  Forum Non Conveniens
§ 8.07  Other Threshold Issues
[1]  Service of Process
[1A] Statute of Limitations
[a]  Generally
[b]  31 U.S.C. § 3731(b)(1): Six-Year Limitation
[i]  Date of Submission of Claim
[ii]  Date Claim Paid
[iii]  Distinction Based on Whether Damages or Penalties Are Sought
[c]  31 U.S.C. § 3731(b)(2): Three-Year Tolling Provision
[i]  Who Is an Official Charged with Responsibility to Act?
[ii]  Construction of “Material Facts”
[2]  Laches
[3]  Joinder
[3A] Double Jeopardy
[3B]  Preclusion
[a]  Collateral Estoppel
[b]  Res Judicata
[4]  Alternative Dispute Resolution Procedures
[a]  Arbitrating FCA Retaliation Claims
[b]  Arbitrating Other FCA Claims
[5]  Dual Representation
[6]  Who Can Be a Relator?
[a]  Relator Anonymity
§ 8.08  Perspectives
[1]  Relator Perspective
[2]  Defendant Perspective
[3]  Government Perspective
[4]  Judicial Perspective
[5]  Current Thoughts
CHAPTER 9
Pleadings and Disclosures


§ 9.01  Preparing the Disclosure Statement
§ 9.02  Filing the Complaint
[1]  Generally
[a]  Filing Suit Under Seal
[b]  Failure to Comply with Seal Requirements
[c]  Unsealing the Case
[2]  Consequences of Governmental Intervention
[3]  Consequences of Nonintervention
§ 9.03  Pleadings
[1]  Subject Matter Jurisdiction
[2]  Amending the Complaint
[a]  Generally
[b]  Relation Back
[3]  Counterclaims
[a]  Generally Allowed
[b]  Exceptions
[i]  Indemnity and Contribution
[ii]  Counterclaims Against the Government
[iii]  Counterclaims Arising Out of Relator’s Employment
[4]  Preliminary Injunctions
[5]  Collateral Estoppel
CHAPTER 9A
Pretrial Motions and Discovery
§ 9A.01 Discovery
[1]  Generally
[2]  Discovery Prior to Unsealing the Case
[a]  Civil Investigative Demands
[b]  Subpoenas
[3]  Discovery After Unsealing Case
[4]  E-Discovery
[5]  Sanctions
[6]  Jurisdictional Discovery
[7]  Privileges
[a]  Attorney-Client Privilege and Work Product Doctrine
[i]  Attorney-Client Privilege
[A]  Generally
[B]  The Crime-Fraud Exception
[ii]  Work Product Doctrine
[iii]  Discoverability of Relator’s Disclosure Statement
[iv]  Common Interest and Joint Prosecution Doctrines
[b]  Proprietary and Trade Secret Material
[c]  Self-Critical Analysis and Self-Evaluative Privilege
[d]  Medical Privileges
[e]  Governmental Privileges
[i]  State Secrets Privilege
[ii]  Deliberative Process Privilege
[iii]  Investigative Process and Law Enforcement Privilege
[8]  Touhy Regulations
§ 9A.02 FCA Actions Against Corporate Entities: Parent/Subsidiary Liability
[1]  General Rule: Parent Is Not Liable
[2]  Exceptions: Parent Is Liable
[3]  Vicarious Liability
[a]  When Liability Requires an Intent to Benefit the Employer
[b]  When Liability Does Not Require That the Employee Intends to Benefit the Employer
[c]  Other Theories
[4]  Corporate Officers
§ 9A.03 Applicability of Rules 8 and 9(b) to the False Claims Act
§ 9A.04 Level of Particularity Required
[1]  Strict Particularity Requirements
[2]  Pleading the Details of the Claim
[a]  Minority View: Particular Details Required
[b]  Pleading the Scheme
[3]  Relaxed Particularity Requirements
[a]  Numerous or Long-Running Fraudulent Transactions
[b]  Facts Within Defendant’s Knowledge and Control
[c]  Inducement Claims
§ 9A.05 Waiver of Rule 9(b) Objection
§ 9A.06 Pretrial Motions
[1]  Rule 12 Motion to Dismiss
[a]  Generally
[b]  Partial Motion to Dismiss
[2]  Summary Judgment
§ 9A.07 Perspectives
[1]  Relator Perspective
[2]  Government Perspective
[3]  Defendant Perspective
[4]  Judicial Perspective
[5]  Current Thoughts
CHAPTER 9B
Trial and Appellate Issues
§ 9B.01 Burden of Proof
§ 9B.02 Expert Witnesses
§ 9B.03 Timeliness of Appeals
CHAPTER 10
Pitfalls of Filing Suit
§ 10.01 Tax Bar: 31 U.S.C. § 3729(e)
§ 10.02 First-to-File Rule: 31 U.S.C. § 3730(b)(5)
[1]  Multi-claim Complaints
[2]  Jurisdictional Issues
[3]  Rule 9(b)’s Role in First-to-File Cases
§ 10.03 Members of Armed Forces: 31 U.S.C. § 3730(e)(1)
§ 10.04 Members of Legislative, Judiciary, or Executive Branches: 31 U.S.C. § 3730(e)(2)
§ 10.05 Pending Governmental Proceedings: 31 U.S.C. § 3730(e)(3)
§ 10.06 Public Disclosure Bar: 31 U.S.C. § 3730(e)(4)
[1]  Have Allegations or Transactions Been Publicly Disclosed?
[a]  The Meaning of “Allegations or Transactions”
[b]  What Constitutes Public Disclosure
[i]  Administrative Proceedings
[ii]  Civil Proceedings
[iii]  Criminal Proceedings
[iv]  Public Disclosure “In a Congressional, Administration, or Government Accounting Office Report, Hearing, Audit, or Investigation”
[v]  Freedom of Information Act
[vi]  News Media
[vii]  Letters
[viii]  Internal Investigations
[ix]  Amended Complaints
[x]  Subpoenas
[xi]  Communications with Government Agencies
[2]  Is the Qui Tam Action “Based Upon” Publicly Disclosed Allegations or Transactions?
§ 10.07 Is the Relator the Original Source? 31 U.S.C. § 3730(e)(4)(B)
[1]  Direct and Independent Knowledge
[a]  Direct
[b]  Independent
[2]  Voluntarily Provided the Information
[3]  Additional Requirements
[a]  Sixth Circuit
[b]  Second and Ninth Circuits
[4]  Allegations in the Complaint
[5]  Can Multiple Relators Be Original Sources?
[6]  The Effect of Government Intervention
§ 10.08 Pre-Filing and Post-Filing Release Bar
§ 10.09 Constitutional Concerns
[1]  Standing
[2]  Eleventh Amendment
[3]  Take Care Clause
[4]  Appointments Clause
[5]  Other Constitutional Issues
§ 10.10 Perspectives
[1]  Relator Perspective
[2]  Defendant Perspective
[3]  Government Perspective
[4]  Judicial Perspective
[5]  Current Thoughts
CHAPTER 11
FCA Damages and Penalties
§ 11.01 Damages in False Claims Cases Generally
§ 11.02 Damages for Mischarge and Overcharge Cases
§ 11.03 Variations of Mischarge and Overcharge Damage Models in Substandard Product and Services Cases
[1]  Benefit of the Bargain
[2]  Out of Pocket
[3]  Repair and Replacement Costs
[4]  Entire Amount Expended
[5]  Government Utilization
[6]  Failure to Test
§ 11.04 Damages in False Negotiation Cases
[1]  Bid Rigging Cases
[2]  Defective Pricing Cases
[a]  Damages for Defective Pricing in Multiple Award Schedule Cases
[b]  The Truth in Negotiations Act
[3]  Damages in  Medicare and Medicaid Kickback Cases
[4]  Damages in Fraud in the Inducement Cases
[5]  Equitable Issues: Void and Voidable Contracts in False Negotiation Cases
[a]  Recovery Under a Contract Deemed Void Ab Initio
[b]  Exceptions to Contractor Recovery for Contracts Deemed Void Ab Initio
[c]  Contracts Deemed Voidable
§ 11.05 Damages in False Certification Cases
[1]  Actual Loss Test
[2]  But For Test
[3]  Reduction for Amounts Reimbursed or Otherwise Paid to the Government
§ 11.06 Reverse False Claim Cases
§ 11.07 Additional Damages
[1]  Recovery of Consequential Damages
[2]  Indirect Damage Elements
[a]  Prejudgment Interest
[b]  Investigative Costs
[c]  Credits and Offsets
§ 11.08 Proving Damages
§ 11.09 Reduction of Damages for Voluntary Disclosure; Reduction of the Multiplier
§ 11.09A Freezing Assets Through Preliminary Injunctions
§ 11.10 Penalties Under the FCA
[1]  The General Rule
[2]  Determining the Number of Penalties
[3]  Determining the Level of Penalties
§ 11.11 Constitutional Issues Relating to Damages and Penalties
[1]  Double Jeopardy
[2]  Excessive Fines
§ 11.12 Tax Deductibility of Judgments
§ 11.13 Perspectives
[1]  Relator Perspective
[2]  Defendant Perspective
[3]  Government Perspective
[4]  Judicial Perspective
[5]  Current Thoughts
CHAPTER 12
Defending and Preventing Suit
§ 12.01 Introduction
§ 12.02 Initial Defensive Considerations and Strategies
[1]  Selecting Counsel
[2]  Anticipating Qui Tam Suits
§ 12.03 Conducting an Internal Investigation
[1]  Overview
[2]  Procedures for Internal Investigations
[a]  Special Counsel
[b]  Written Guidelines and Procedures
[c]  Witness Interviews
[d]  Multiple Representation and Joint Defense Options
[e]  Disclosure of Findings
[i]  Waiver of Attorney-Client Privilege
[ii]  Waiver of Qualified Privilege of Work Product
§ 12.04 The Government’s Intervention Decision
§ 12.05 Pretrial Strategies
[1]  Motions to Dismiss and for Summary Judgment
[2]  Discovery Issues
[3]  Counterclaims
[4]  Offers of Judgment 
§ 12.06 Parallel Issues in Criminal and Civil Cases
[1]  Search Warrants
[2]  Grand Jury Subpoenas
[3]  Stays of Litigation
[4]  Government Interviews
§ 12.07 Civil and Criminal Corporate Liability 
[1]  Vicarious Liability
[a]  Civil
[b]  Criminal
[2]  Doctrine of Collective Knowledge
[3]  Successor Liability
§ 12.07A Insurance Coverage
§ 12.08 Preventing Qui Tam Suits
[1]  Organizational Compliance and Ethics Programs
[a]  Generally
[b]  Federal Sentencing Guidelines
[2]  Department of Justice Guidelines on Corporate Compliance
[3]  Other Compliance Issues
[4]  Mandatory Arbitration
[5]  Employee Releases
§ 12.09 Perspectives
[1]  Relator Perspective
[2]  Defendant Perspective
[3]  Government Perspective
[4]  Judicial Perspective
[5]  Current Thoughts
CHAPTER 13
Settlement, Attorney’s Fees, Relator Share, and Dismissal
§ 13.01 Statutory Settlement Requirements: The Rights of Government and the Relator to Object
[1]  Settlement Must Be “Fair, Adequate, and Reasonable”
[2]  Relator’s Right to Object When Government Intervenes
[3]  Government’s Right to Object if There Was No Previous Intervention
[a]  Limited Ability to Block Settlement
[b]  Broad Ability to Block Settlement
[c]  Unresolved Ability to Block Settlement
§ 13.02 Calculating the Relator’s Share
[1]  Impact of Settlement Before Trial
[2]  Impact of Government Intervention
[a]  “Senate Factors”
[b]  Department of Justice Guidelines
[c]  If Based on Public Disclosure
[3]  Effect of Government Nonintervention
[4]  Effect of Relator Involvement in Wrongdoing
[5]  When the Government Pursues Alternative Remedies
[6]  Other Government Attempts to Minimize Relator’s Contribution
§ 13.03 Determining the “Proceeds of the Action”
[1]  Non-Cash Remedies
[2]  Actual Recovery
§ 13.04 Attorney’s Fees, Costs, and Expenses
[1]  Who Owns the Fee?
[2]  What Constitutes “Reasonable Attorney’s Fees”
[3]  Apportionment of Attorney’s Fees, Costs, and Expenses Among Multiple Defendants
[4]  Defendant’s Right to Recover Attorney’s Fees, Costs, and Expenses
[a]  Costs from the Government
[b]  Attorney’s Fees, Costs, and Expenses from the Relator
[c]  Attorney’s Fees, Costs, and Expenses from the Relator’s Counsel
§ 13.05 Settlement Documents
[1]  Confidentiality Agreements
[2]  Corporate Integrity Agreements
§ 13.06 Dischargeability of FCA Settlement Payment in Bankruptcy
[1]  Debtor Is a Corporation
[2]  Debtor Is an Individual
[a]  Substance Over Form of Settlement Agreement
[b]  What Part of the Debt Is Nondischargeable
§ 13.07 Taxes
[1]  Deductibility of Settlement Payment by Defendant
[2]  Taxability of Relator’s Share of Recovery
[3]  Taxability of Attorney’s Fees as Part of Relator’s Share of Recovery
§ 13.07A Statutory Dismissal Requirements: The Rights of the Government versus the Rights of the Relator to Object
[1]  Standards for Dismissal
[2]  Rights of the Relator to Object
[3]  Tension Between the Relator’s Right to Object to Settlement and the Right to Object to Dismissal
§ 13.08 Perspectives
[1]  Relator Perspective
[2]  Defendant Perspective
[3]  Government Perspective
[4]  Judicial Perspective
[5]  Current Thoughts
CHAPTER 14
 
State and Municipal False Claims Acts
and Other Whistleblower Statutes
§ 14.01 Overview of State False Claims Acts
§ 14.02 The Deficit Reduction Act of 2005
§ 14.03 Liability and Damages Provisions
§ 14.04 Procedural Issues
[1]  Who Can Be a Relator?
[2]  Statute of Limitations
[3]  Privileges
[4]  Counterclaims
[5]  Other Procedural Issues
§ 14.05 Jurisdictional Bars to Actions
[1]  First to File Bar
[2]  Public Disclosure Bar
§ 14.06 Retaliation
§ 14.07 Relator’s Share
§ 14.08 Municipal and County False Claims Acts
[1]  Chicago
[a]  Liability and Damages Provisions
[b]  Procedural Issues
[c]  Bars to Actions
[d]  Retaliation
[e]  Relator’s Share
[2]  New York
[a]  Liability and Damages Provisions
[b]  Procedural Issues
[i]  Who Can Be a Relator?
[ii]  Statute of Limitations and Burden of Proof
[iii]  Settlement and Dismissal
[iv]  Other Procedural Issues
[c]  Bars to Actions
[d]  Retaliation
[e]  Relator’s Share
[f]  Annual Report
[3]  Miami-Dade County
[a]  Liability and Damages Provisions
[b]  Procedural Issues
[c]  Bars to Actions
[d]  Retaliation
[e]  Relator’s Share
[4]  Allegheny County
[a]  Liability and Damages Provisions
[b]  Procedural Issues
[c]  Bars to Actions
[d]  Retaliation
[e]  Relator’s Share
§ 14.09 Issues Arising from State and Federal False Claims Acts
[1]  Interpretation of State and Municipal Statutes
[2]  Constitutional Challenges
§ 14.10 Perspectives
[1]  Relator Perspective
[2]  Defendant Perspective
[3]  Government Perspective
[4]  Judicial Perspective
[5]  Current Thoughts
CHAPTER 15
 
Non-FCA Federal Whistleblower Programs
§ 15.01 Internal Revenue Service Whistleblower Program
[1]  Generally
[2]  Whistleblower Provisions
[3]  Filing a Claim and Form 211
[4]  Criticisms
§ 15.02 American Recovery and Reinvestment Act of 2009
[1]  Prohibition Against Reprisals
[2]  Agency Action
[3]  Civil Action
§ 15.03 Securities and Exchange Commission Whistleblower Program
[1]  Prohibition Against Retaliation
[2]  Enforcement Action
[3]  Civil Action
§ 15.04 Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
[1]  Generally
[2]  Whistleblower Provisions
[3]  Protections Against Retaliation
§ 15.05 Energy Reorganization Act
[1]  Generally
[2]  Prima Facie Retaliation
[3]  Contributing Factor
[4]  Adverse Employment Action
[5]  Standard of Review
 
Appendix A: State, City, and County False Claims Acts: A List of Statutes
 
Appendix B: CD-ROM Table of Contents: Pleadings, Practice   Suggestions, Notices, Memoranda, Agreements, State Statutes
 
Table of Abbreviations
Index