False Claims Act lawsuits – also referred to as FCA or qui tam lawsuits – are complex litigation proceedings that can often continue for years with high financial and reputational stakes for both defendants and plaintiffs alike. Individuals and entities in many industries face the threat of FCA lawsuits, with those in the medical and defense industries facing a particularly high risk of FCA litigation. In some cases, those accused of submitting false claims to state or federal governments face criminal penalties as well.
Whether you or your company face the potential threat of an FCA lawsuit, or you have acquired knowledge of activities that may constitute a violation of the FCA such that you may be eligible to bring a whistleblower complaint, it is critical to obtain legal counsel at the earliest stages to protect your interests. The attorneys of Zweiback, Fiset & Zalduendo have significant experience representing both defendants in FCA lawsuits as well as whistleblower plaintiffs and have the skills to work with individuals and companies to navigate the difficult terrain of a qui tam lawsuit and guide clients towards positive outcomes.
What is the False Claims Act?
The False Claims Act imposes significant liability on those who defraud the US government. Since that time, many states have enacted similar provisions. Individuals and businesses accused of face significant penalties for violations of the FCA, including treble damages and potential criminal penalties.
The FCA includes a “qui tam” provision which incentives private individuals to bring forth evidence of false claims by providing such whistleblowers with 15% to 30% of the damages recovered, which can be quite substantial. When a private party brings an FCA lawsuit, the government has the option of joining the plaintiff in pursuing the lawsuit, but the plaintiff may pursue the case regardless of the government’s involvement.
What Does a False Claims Act Lawyer Do?
On the plaintiff’s side, FCA attorneys work with potential whistleblowers to assess and gather evidence for the purpose of asserting a qui tam claim against an individual or company. They then draft the lawsuit – typically without the defendant’s knowledge that a lawsuit is being prepared – and then prosecute the lawsuit, which may or may not be joined by the government to recover damages and penalties. Again, qui tam plaintiffs stand to collect 15% to 30% of the total recovery in an FCA lawsuit, and, given that numerous FCA lawsuits have resulted in recoveries in the hundreds of millions of dollars, a plaintiff may stand to collect an enormous financial recovery.
FCA defense attorneys respond to False Claims Act lawsuits to defend the individuals or entities accused of wrongdoing. This process can include fact gathering and internal investigations, responding to investigations and information requests from federal and state agencies, negotiations with the plaintiffs and governmental entities, litigation, and ongoing counsel to the client in defending its interests in the immediate case and in creating practices and procedures to prevent future FCA risks.
When is the Right Time To Call an FCA Attorney?
Potential whistleblower plaintiffs who believe they have evidence of a FCA violation are encouraged to speak with an attorney early in the process to determine whether a potential FCA claim exists, what next steps should be taken, and how best to proceed. There are numerous provisions in the law affecting whistleblower eligibility for a financial reward, and it is important to understand and conform with these legal provisions to protect one’s interests. Furthermore, it is critical to properly navigate internal dynamics at the earliest stages to avoid retaliation and other negative consequences, which can be extremely difficult and potentially fatal to the success of an FCA whistleblower recovery without legal counsel.
For individuals and companies facing potential FCA claims, it is similarly important to engage counsel at the first sign of such a claim, even if no such claim has yet been asserted. Whistleblower plaintiffs typically are working with counsel for weeks or months prior to asserting a claim (as is in their strategic interest to do so), thus waiting for a lawsuit to be served before engaging counsel can put you and your company far behind the starting line.
Matters That Our False Claims Attorneys Handle
Our attorneys have extensive knowledge of and experience in both asserting and defending against FCA claims. We assist plaintiff whistleblowers in developing and pursuing their FCA claims. We also provide aggressive defense and counsel to individuals and entities facing potential FCA risks and who are involved in FCA litigation. We have the ability to work with plaintiffs and defendants across industries, including but not limited to the following.
Medicare & Medicaid Fraud
Medicare and Medicaid fraud is a frequent ground for bringing an FCA claim whether under federal or state law. Physicians, hospitals, HMOs, managed care organizations (MCOs), skilled nursing facilities and other healthcare service providers can be liable of FCA violations for a number of alleged practices, including upcoding, unnecessary services, billing for unrendered services, improper unbundling of services, and other acts violative of the FCA.
Furthermore, the potential for an FCA claim in the context of Medicare and Medicaid is high due to the number of personnel involved in the process – potential whistleblower plaintiffs bringing forth evidence of such fraud can include doctors, pharmacists, nurses, healthcare executives, and anyone involved in the billing and reimbursement process.
Some of the largest FCA fines and penalties have been levied against entities in the pharmaceutical industry, including numerous recoveries in the hundreds of millions of dollars against single defendants. As whistleblower plaintiffs stand to recover between 15% of the 30% of the total amount of recoveries paid by pharmaceutical company defendants. The incentive remains high for such whistleblowers – which can include employees, scientists, engineers, pharmaceutical executives, and others – to come forward with evidence supporting a potential FCA claim. Frequently, the underlying acts at issue in pharmaceutical FCA claims include activities such as paying speakers to steer physicians towards certain drugs, other perceived “kickbacks” to doctors to increase prescriptions, manipulating copays of prescriptions to increase sales, and making false and misleading claims regarding the efficacy and safety of prescription drugs.
Any contractor or supplier providing goods or services to the federal government faces the risk of an FCA lawsuit if allegations that fraud was involved in the process are raised. Similarly, many state governments allow for state-level false claims act proceedings to be brought against contractors and suppliers. The federal government has indeed recovered billions of dollars in damages via FCA lawsuits against contractors and suppliers, often related to defense procurement and disaster relief efforts but which can conceivably include any good or service provided to the government, for actions such as providing subpar products or services, inflation of labor hours, false pretenses in winning contracts, falsification of invoices or progress made, and kickbacks and bribery.
Scheduling a Consultation with an Attorney
For both whistleblower plaintiffs and defendants alike, the process of litigating an FCA claim is often long (many such lawsuits average 3-5 years in length) and filled with risk. It is important to work with experienced FCA counsel from the earliest stages of either asserting or responding to a FCA claim to protect your interests and maximize your chances of a positive outcome. Our attorneys have combined decades of experience in both the federal government and in the highest levels of private practice, and are ready to work with you to counsel you and/or your business on any FCA issues you may be facing.