Mississippi Qui Tam Lawyer Discusses Senate Leaders’ Attempts to Provide More Aggressive Safeguards for FBI Whistleblowers

According to a report drafted by the U.S. Attorney General last year, supplemental protections for FBI whistleblowers were being considered to safeguard employees that disclose misconduct. The report specifically requested the following changes: (1) authorizing equal access for witnesses employed by the agency; (2) granting whistleblowers the right to obtain compensatory damages if they are subjected to retaliation; (3) allowing disclosures to be made to a broader range of persons. When the report was generated, leading members of the Senate Judiciary Committee, including Chuck Grassley and Ron Wyden commented positively on the recommended reforms.

Since those initial promising developments, Chuck Grassley and ranking member of the Senate Judiciary Committee Patrick Leahy have introduced the Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2015. The proposal, which was introduced at the end of the year, broadens safeguards for employees who make protected disclosures and strengthens the processes designed to prevent retaliation against whistleblowers. The sponsors of the bill have publicly noted that the law would encourage FBI employees who learn of fraud, abuse, and waste by the FBI to come forward to protect the public. They emphasize that without adequate protections, employees might feel compelled to turn a blind eye to such improper practices out of fear of experiencing personal repercussions.

The law in needed because the Federal Whistleblower Protection Act exempts both member of the FBI and employees within the intelligence community from protection against reprisals for disclosing agency misconduct. If the bill becomes law, prospective whistleblowers would be authorized to make protected disclosures to the Office of the Inspector General at the FBI. The IG will have the authority to impose a stay of any adverse action against the employee if there is evidence to support a reasonable belief that the punitive measures were retribution for blowing the whistle on a protected disclosure. The law provides further protections for federal whistleblowers at the FBI because disputes are adjudicated by an Administrative Law Judge (ALJ) rather than internally within the Department of Justice. Employees can appeal an adverse decision by the ALJ to the U.S. Court of Appeals.

Although it is premature to determine whether the bill will become law, the proposed legislation evidences a willingness by some members of Congress to offer additional protections to federal employees who disclose misconduct by the FBI. The step is particularly important because it focuses on employees of the federal government who currently have little or no protection from retaliation for disclosing fraud, waste, and abuse by the agency. The enactment of this proposed legislation would provide a powerful incentive for FBI employees who are aware of illegal activity and wrongdoing to disclose the information they have learned.

If you are an employee of the state or federal government, our law firm represents whistleblowers in both the private and public sector. At Barrett Law, we are here to help individuals who have the courage to step forward and expose such wrongdoing. Our experienced Mississippi Qui Tam Lawyer works diligently to pursue the maximum compensation for our clients. Contact our firm today at (601)790-1505 to schedule your free consultation, so we can answer any questions you may have regarding your claim.

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Federal Court Upholds Award under False Claims Act against State Farm for Manipulating Wind Claims into Appearing Like Flood Damage Claims

Many homeowners do not realize that standard homeowner’s policies do not cover flood damage.  Rather, flood insurance typically must be obtained through a separate policy under the National Flood Insurance Program (NFIP).  The federal government makes flood insurance available for discounted rates that do not correlate to actuarial risks through this program.  A key aspect of the NFIP authorizes private insurance companies to issue such policies in their own name under the Write Your Own Program (WYO).  While the private insurer issues the policy and administers claims, the government actually pays claims up to $250,000 for flood-based building damage and $100,000 for flood damage to personal property.

Private insurance companies often issue both a standard homeowner’s policy for which the carrier is liable and a WYO flood insurance policy backed by the federal treasury.  This creates an obvious conflict of interest when a hurricane causes damage because the private insurer can avoid liability by characterizing the damage as being caused by water rather than wind.  To mitigate this obvious potential for abuse, insurers under the WYO program owe a fiduciary duty to policyholders.  Unfortunately, there have been significant reports of manipulated and undisclosed expert reports and similar fraudulent tactics committed by insurers in processing Hurricane Katrina claims.  Insurers have used these tactics to shift liability for claims from private insurers to the federal government by misrepresenting the principle cause of the damage.

The U.S. Court of Appeals, Fifth Circuit recently upheld a relator’s qui tam claim under the False Claims Act for just such a practice.  The relators were adjusters for State Farm who brought a qui tam action alleging that their employer submitted false claims to the government for payment on flood policies.  The relator’s lawsuit alleged that the insurer unlawfully shifted responsibility for damage to the homes of Gulf Coast residents from homeowner’s insurance policies to the federal government through the WYO program.  They indicated that this shift was accomplished by characterizing damage caused by Hurricane Katrina as water damage.

Most homeowners would probably find the evidence provided by the relators as extremely disturbing.  The relators testified that shortly after the hurricane, a meeting with adjusters was organized by a State Farm trainer who provided the following instruction: “[w]hat you will see is, you will see water damage.  The wind wasn’t that strong.  You are not going to see a lot of wind damage.  If you see substantial damage, it will be from water.”

Further, the policy of the insurer prior to Katrina was to conduct line-by-line and item-by-item estimates of home damages using a program referred to as Xactimate.  Because of the high volume of claims, FEMA authorized insurers to employ an expedited procedure for two kinds of claims: (1) homes swept of their foundation by flood water; and (2) homes with standing water.  Any other claims were supposed to be adjusted using the insurer’s normal procedures.  The relators presented evidence that State Farm disregarded this directive and used an alternative software program referred to as Xactotal, which estimates value based on construction quality and square footage.  Although this alternate method did not involve a line-by-line analysis, it appeared to include such an evaluation.

The relators also disclosed that Brian Ford of Forensic Analysis Engineering produced a report indicating that the damage to the insured’s home (which was a test case) was primarily caused by wind damage.  In their qui tam action, they also indicated that State Farm refused to pay the expert and withheld his report from the insured’s NFIP claim file.  A note on the front of the report read “Put in Wind [homeowner’s policy] file – Do NOT Pay Bill DO NOT discuss.”  State Farm then obtained a subsequent expert that concluded water was the principal cause of the damage.  Evidence also was presented that a State Farm representative pressured the Forensic Analysis engineer with the loss of future business if he did not find flood damage as the primary cause of loss.

The trial court awarded the relators the maximum possible share on the test claim of thirty percent which amounted to $758,250 (treble damages on the $250,000 policy limit for damage to the home) plus a civil penalty of $227,475, and an extensive award for attorney fees and court costs.  State Farm appealed the decision, indicating that the facts were insufficient to support the verdict.  The appellate court found the evidence was sufficient to establish the fraudulent claim and ruled that the relators were entitled to additional discovery to establish other claims.

This is an example of the important role that whistleblowers serve by exposing attempts to misappropriate public funds and engage in other conduct that defrauds the public or creates threats to public safety.  At Barrett Law, we are here to help individuals who have the courage to step forward and expose such wrongdoing.  Our experienced Mississippi Qui Tam Attorneys work diligently to pursue the maximum compensation for our clients.  Contact our firm today at (601) 790-1505 to schedule your free consultation, so we can answer any questions you may have regarding your claim.

 

 

 

 

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Court Denies Protection from Wrongful Termination to Whistleblower Based on Allegations Employee Participated in the Illegal Activity

While there are a plethora of protections available to a whistleblower under Mississippi and federal law, employees often have justifiable concerns about retribution by their employer.  Mississippi employment law is based on the premise that employees are hired on an at-will basis absent a written employment contract.  Generally, the at-will doctrine permits an employer to terminate an employee for a good reason, bad reason, or no reason at all subject to certain exceptions.

Whistleblowers that report illegal activity by their employer might qualify under the public policy exception to the “at-will employment doctrine.”  However, employees concerned about reprisals by their employer should seek legal advice and representation before “blowing the whistle.”  Although there are protections for employees who disclose illegal conduct, financial fraud, and other forms of misappropriation of public funds, the public policy or statutory authority for the claim will impact the requirements and criteria for seeking protection from an employer after reporting misconduct.  A decision from the Supreme Court of Mississippi, Galle v. Isle of Capri Casinos, Inc., 180 So.3d 619 (Miss. 2015) demonstrates the peril of whistleblower’s moving forward without the benefit of legal advice.

The former employee of a casino was discharged after reporting the employer’s illegal conduct.  The employee filed a wrongful termination lawsuit based on the public policy exception to the employment-at-will doctrine.  The employee, who worked in the poker room, was promoted to “poker room manager.”  The promotion required the employee obtain a special license from the gaming commission.  The commission denied the employee’s application because of a prior conviction for burglary that was inadvertently omitted from the application.  After the application was denied, the casino demoted the employee to a supervisor in the poker room.

While the employee’s prior badge indicated he was a supervisor, he received a badge with the title “poker room manager” after new badges were issued.  When Gaming Commission agents inquired of the employee, he first indicated the casino did not have a poker room manager but subsequently admitted he was functioning in that capacity.  The casino received a letter from the Gaming Commission directing that the employee be removed from any position requiring a Key License.  After receipt of the letter, the employer fired the employee.

The employee filed a wrongful-discharge lawsuit based on the public policy exception to the at-will doctrine.  He alleged that he was fired for reporting his illegal employment as poker room manager.  While Mississippi’s highest court did acknowledge the McArn exception to the at-will doctrine for “wrongful discharge in violation of public policy … based on an employer’s duty not to thwart the public interest in terminating employees for speaking the truth.”  While reporting the illegal scheme of the casino to keep an employee in a position without proper licensing might otherwise have provided a basis for a wrongful termination claim, the court emphasized the employee’s participation in the illegal conduct.  Because the employee did not report the illegal scheme prior to discovery by the Gaming Commission, the employee could not make a wrongful discharge claim based on public policy.

Prospective whistleblowers need to recognize the importance of legal advice to maximize recovery and minimize the risk of reprisals when disclosing illegal conduct by an employer.  An experienced qui tam lawyer can guide employees through the process of blowing the whistle.  If you have evidence of illegal activity or fraud by your employer, you are invited to contact the experienced Qui Tam Attorneys at Barrett Law to learn how we can help.  Our Mississippi Whistleblower Lawyers have been representing conscientious employees throughout Mississippi for over 75 years.  We offer personalized legal representation and zealous advocacy.  We provide a free initial case evaluation so call us today at (601) 790-1505.  No Recovery No Fee!

 

 

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Whistleblower Seeks Compensation and Reinstatement after Alleged Termination for Fraudulent Medicare Billings

This blog has addressed the important role that a whistleblower serves in protecting the public from financial fraud involving federal funds and illegal acts that could harm consumers.  Disclosure of this type of illegal and unethical conduct constitutes a heroic act because of the risk of retribution by companies that employ those who reveal improper activities.  Fortunately, most whistleblowers are protected to some extent by laws that make it a criminal offense to punish an employee for disclosing fraud against a public entity.

A recent case involving a pediatrician who was fired as the CEO of Architrave Health after disclosing $10 million in improper Medicare payments to doctors provides a telling example.  The CEO was terminated allegedly due to his decision to report kickbacks and improper billing by a subsidiary of Architrave to the Centers for Medicare & Medicaid Services.  The lawsuit filed by the former CEO indicates his termination was retaliation for uncovering the fraudulent billings and refusing to cooperate in preventing the information from being made public.  The complaint filed by the plaintiff alleged that the company’s board of directors “reluctantly authorized” the CEO to self-disclose the Stark Law violations.  However, the plaintiff was terminated shortly after reporting the illegal payments.  He claims that he was informed the reason for his firing was a failure to “cooperate and coordinate.”

The federal Stark Law prohibits certain referrals by physicians where a conflict of interest exist.  The law bars referral of designated health services for patients on Medicaid and Medicare when the doctor has a financial affiliation or interest in the entity receiving the referral.  Penalties for violations under the Stark law include:

  • Restitution of funds received by the provider
  • Civil penalties of $15,000 per violation for each service the physician knows or should know was a violation of the law
  • Three times the amount the entity received from the public health program
  • Payment of civil penalties for attempting to evade the law of up to $100,000 for each scheme to avoid detection

The lawsuit for the wrongful termination filed by the former CEO requests reinstatement, back pay, attorney fees, and punitive damages.  He also alleges his unjustified termination of employment resulted in losing business opportunities, future earning capacity, damage to his professional standing and reputations, as well as lost income and benefits.  The whistleblower also indicates in his complaint that he was blacklisted by Architrave.

Our Mississippi Qui Tam Lawyers understand how to use the protections provided by whistleblower laws to shield employees who disclose this type of misconduct.  At Barrett Law, our Mississippi Qui Tam Lawyers work to protect individuals who expose corrupt and unlawful practices while seeking the fullest compensation for whistleblowers.  Contact our firm today at (601)790-1505 to schedule your free consultation, so we can answer any questions.

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Hospitals Settle Implantable Cardioverter Defibrillator False Claims Action for $257 Million

A recent massive settlement between 457 hospitals spread across 43 states and the Department of Justice (DOJ) has culminated with the medical providers agreeing to pay $257 million.  Cardiac devices implanted into Medicare patients in violation of coverage restrictions constituted the impetus for the qui tam action.  The DOJ settlement involved almost seven dozen hospital systems, including some of the nation’s largest health care systems.

The False Claim action was filed pursuant to an extensive investigation regarding excessive implantation of implantable cardioverter defibrillators (ICDs).  ICDs are implanted in the chest in the vicinity of the heart.  When the patient experiences dangerously rapid fibrillations, the medical device provides an electrical shock designed to restore the heart’s normal rhythm.  While Medicare does provide coverage for implantation of the device, the public insurance program specifies detailed risk factors and clinical indications that determine coverage.

The criteria that dictate eligibility are governed by the National Coverage Determination (NCD) system.  This protocol was adopted by the Centers for Medicare and Medicaid Services and uses a range of information to verify that treatment under the publicly funded medical program is based on scientifically established medical diagnostic and treatment regimens that are “reasonable and necessary.”  The information relied on under the NCD in making this determination regarding ICDs included but was not limited to the following:

  • Testimony & recommendations of cardiologists and other medical professionals
  • Clinical trials
  • Patient advocacy groups
  • Manufacturers of cardiac medical devices
  • Professional cardiac societies

The False Claims lawsuit was filed based on implantation in patients where use of the device was expressly excluded under the NCD.  The restrictions prohibited implantation in patients who have undergone a recent angioplasty or bypass surgery.  Implantation also is not authorized for patients who have suffered a recent heart attack.  While patients that fit these criteria can receive the heart implants, a waiting period of forty days must be observed after a patient has suffered a heart attack.  This waiting period is ninety days for patients who have undergone an angioplasty or bypass surgery.  The rationale for this delay is to ensure the heart has time to recover before undergoing the implantation procedure.

The qui tam settlement involved hospitals that performed these heart implant procedures between 2003 and 2010 without observing the mandated waiting period.  The qui tam action was filed by a cardiac nurse and health care reimbursement consultant.  The whistleblowers were awarded in excess of $38 million out of the settlement amount.

At Barrett Law, we know that whistleblowers often have concerns about retaliation that might dissuade disclosure of improper medical billing and fraud.  However, our Mississippi Qui Tam Lawyers work diligently to protect our clients from such acts under applicable state and federal laws.  Further, we work closely to ensure that our client’s degree of involvement and cooperation in pursuing a recovery results in an appropriate award.  We invite you to contact our firm today at (601) 790-1505 to schedule your free consultation, so we can answer any questions you may have regarding your qui tam lawsuit.

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SEC Makes Progress in Limiting Ability of Companies to Silence Whistleblowers

Many companies attempting to avoid disclosures that cause embarrassment and exposure to civil and criminal liability have used restrictive non-disclosure agreements to silence whistleblowers.  These agreements essentially constitute documents imposing corporate censorship to prevent disclosure of misconduct that harms the public.  Earlier this year, the SEC took action to protect whistleblowers from these oppressive agreements in the context of Dodd-Frank.

The Dodd-Frank Act includes language that permits people to cooperate with the government by notifying the public and courts of inappropriate financial practices.  The value of this law in safeguarding the financial system and protecting the public is evidenced by the important role of whistleblowers in exposing the misconduct of Bernie Madoff and Enron.  The devastating impact of large scale financial misconduct that contributed to the financial meltdown in the U.S. can be exposed and prevented by freeing whistleblowers from restrictive confidentiality agreements.

Since enactment of Dodd Frank, companies have drafted elaborate and extremely restrictive non-disclosure agreements that are intended to handcuff whistleblowers.  These agreements generally only permit revealing confidential information to the legal department of the offending company.  The hammer used to enforce restrictions on disclosure of misconduct includes making such non-disclosure a condition of employment.  Further, employees have been presented with confidentiality agreements that condition severance pay or the settlement of claims related to termination on accepting such censorship.

While no two non-disclosure agreements are identical, they tend to share some common features.  A common provision within this type of restrictive confidentiality agreement only permits confidential information to be discussed with lawyers hired by the company.  Many even prohibit discussing such information regarding illegal or otherwise improper practices with government regulators like the SEC.  Some companies also impose a requirement that employees discuss information regarding the scope of inquiry under such government investigations with company representatives.  In other words, innocent employees are essentially turned into informants for the company and forced to report on representatives of government agencies.

A particularly egregious aspect of these agreements involves the requirement that the existence of such agreements not be disclosed.  Forcing employees to hide agreements that limit disclosure of illegal conduct and fraud by their employees amounts to having the wolf guard the henhouse.

Fortunately, the SEC has stepped in to put a stop to this tactic, which undercuts the purpose of qui tam claims and whistleblower statutes.  In early April 2015, the agency levied huge fines on KBR, a massive defense industry contractor, for mandating that employees sign restrictive confidentiality agreements.  The agreements were challenged by the whistleblower who exposed extensive fraud committed against the federal government by the defense contractor during the Iraq war.  The whistleblower challenged the agreements, which were used by KBR to silence other employees with knowledge of information relevant to proving his fraud claims.

It is still too early to tell how this action will impact whistleblowers under laws relevant to other agencies and fraud outside the financial sector.  The ruling marks the first time that a federal regulatory agency has fined a corporation for imposing non-disclosure agreements that impair the ability of an employee to report financial crimes.  Hopefully, other state and federal regulatory agencies will take a similar stance.

Our Mississippi Qui Tam Attorneys represent individuals who exercise the courage to disclose fraud and other criminal activity under state and federal whistleblower laws.  At Barrett Law, we are here to help.  Contact our firm today at (601) 790-1505 to schedule your free consultation, so we can answer any questions you may have regarding filing your claim.

 

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Calculating Financial Recovery for a Qui Tam Action under the False Claims Act

False Claims Act lawsuits have led to the recovery of in excess of $44 billion dollars spanning a period of 1986-2014.  Whistleblowers who have commenced lawsuits have accounted for $30 billion of the amount recovered.  Further, the successful prosecution of these qui tam claims has generated more than $4.7 billion in payments to whistleblowers who have assisted the government in recovering public funds for taxpayers.  There were over 713 False Claims Act lawsuits commenced by whistleblowers in 2014 alone.  Many people weighing whether to come forward to expose fraud that results in the depletion of tax revenue are unsure how awards under the False Claims Act are calculated and paid.

While the recovery typically will be comprised of multiple types of compensation, such as a share of the money recovered or disgorged and penalties as well as reasonable attorney fees and costs.  The amount the whistleblower (referred to as the “Relator” under the False Claims Act) is entitled to be paid falls between 15 and 30 percent of the “proceeds” obtained in the qui tam lawsuit settlement or judgment.  The proceeds include the money or benefits recovered, which includes treble damages, along with penalties amounts assessed.  Where the recovery falls along the 15-30 percent continuum will depend on whether the government intervenes and the extent of the Relator’s involvement in prosecuting the case and providing information.

Evaluating the Appropriate Percentage of the Proceeds

Relators will typically obtain a far more substantial recovery if they have legal representation because evidence must be presented to justify the Relator’s percentage of the proceeds.  The minimum 15 percent sum is intended for cases where a “finder’s fee” is appropriate according to a report produced by the Senate Judiciary Committee.  Although the government frequently will argue for this minimum threshold recovery, this percentage is only intended when the Relator commences the case that leads to a recovery and takes no other role or provides no other information or evidence used to obtain the judgment or settlement.  When the involvement of the whistleblower involves providing supporting documents, testimony, and other facts and/or continuing to actively participate in the qui tam action, the recovery should be significantly higher up to a maximum of 30 percent.

Proving Right to Higher Percentage Based on Senate Factors

The experience of your False Claims Act attorney can significantly impact this percentage.  Courts frequently utilize two different systems for calculating the percentage of the proceeds to be awarded: (1) Senate report factors and/or (2) Guidelines from the U.S. Department of Justice (DOJ).  However, the DOJ guidelines do not carry the force of law, so these should only be argued to the extent they support the Relator’s claim to a more significant percentage of the proceeds.  The Senate report identifies three factors to be evaluated: (1) contribution by the Relator to the outcome of the case; (2) the “significance” (e.g. importance, relevance, and scope) of the information provided by the Relator; and (3) prior knowledge of the fraudulent activity by the government.  When filing a motion seeking the Relator’s share of the proceeds, persuasive advocacy that provides facts and evidence in these three areas is essential.

Guidelines from the U.S. Department of Justice

The DOT has its own guidelines that list potential considerations that support either increasing or reducing the amount of recovery.  The list of factors is lengthy, but examples include:

  • No knowledge of the fraud by the government
  • Extensive detail and information furnished by the Relator
  • Warning provided regarding a significant public safety concern
  • Prompt reporting of the illegal practices
  • Significant assistance during the pre-trial and investigation stages of the lawsuit
  • Discontinuation of the fraudulent activity after bringing claim
  • Relative size of the financial recovery

Our Mississippi False Claim Act Lawyers assist our clients in gathering and presenting information relevant to the approximately two dozen factors that might favor our client receiving more funds.  At Barrett Law, our Mississippi Qui Tam Lawyers work to protect individuals who expose corrupt and unlawful practices while seeking the fullest compensation for whistleblowers.  Contact our firm today at (601)790-1505 to schedule your free consultation, so we can answer any questions you may have regarding filing car accident case.

 

 

 

 

 

 

 

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Court Recognizes Public Policy Exception to Confidentiality Agreements in False Claims Act Lawsuit

Whistleblowers who disclose fraudulent practices, false billings, and inflated charges submitted to Medicare provide a valuable benefit to taxpayers.  Attempts by health care providers to engage in fraudulent Medicare billings often are exposed through qui tam actions brought by former employees of the offending medical care provider.  Although employees that disclosed financial malfeasance through the False Claims Act facilitated the recovery of a staggering $5.7 billion in 2014, health care providers frequently attempt to silence whistleblowers by threatening civil liability based on violation of confidentiality agreements.  A recent decision by a federal district court in New York offers protection to whistleblowers in this situation by carving out a public policy exception to confidentiality agreements.

In U.S. et al. ex rel. Ortiz et al. v. Mount Sinai Hospital et al., the relators (whistleblowers) alleged that Mount Sinai Hospital and several other affiliated entities engaged in improper billing and wrongful payment retention practices.  The health care providers filed a motion to dismiss the False Claims Act action based on the relator’s use of confidential patient records in violation of confidentiality agreements between the parties.  This defense strategy is significant because the success of qui tam actions often turn on confidential information that would not be readily available to anyone other than an employee or manager subject to nondisclosure or confidentiality agreements.

The court in evaluating the use of confidential information emphasized the important public policy of protecting whistleblowers who disclose fraud committed against the government.  The court rejected the contention that a nondisclosure or confidentiality agreement could trump the False Claims Act’s strong public policy of encouraging whistleblowers to report financial malfeasance that fraudulently dissipates public health care dollars.  The court also noted the relator’s allegation that HIPPA carves out a special exception that permits whistleblowers to provide information to government entities and private attorneys based on a good faith belief regarding unlawful acts.

Decisions like this one are important because health care providers that defraud Medical often attempt to hide behind confidentiality agreements to avoid liability under the False Claims Act.  The impact of allowing this tactic to deter employees from blowing the whistle can hardly be overstated given that Medicare fraud is estimated to cheat taxpayers out of between $60 and $90 billion annually.

Despite the protections potentially offered by this ruling, whistleblowers are advised to seek legal advice before gathering or using confidential information to expose fraudulent medical billings against the government.  The law regarding the use of information subject to a non-disclosure or confidentiality agreement can evolve and varies depending on the jurisdiction.  Sound legal counsel can help relators avoid illegal evidence gathering practices.  Our Mississippi qui tam lawyers also can offer advice on steps that can be taken to prevent the disclosure of confidential information, such as use of a redacted complaint that omits the names of patients.  Because our law firm has a long history of representing whistleblowers, we recognize the importance of taking appropriate steps to protect our clients from the potentially adverse consequences of disclosing fraud by their employers.

Our Mississippi False Claims Act Attorneys can guide courageous whistleblowers through the qui tam process.  Contact our firm today at (601)790-1505 to schedule your free consultation, so we can discuss your legal rights.

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Five Important Facts Mississippi Whistleblowers Should Know

Our Mississippi Qui Tam Lawyers have represented whistleblowers in different types of claims involving attempts to defraud the government through a wide range of practices.  Because the qui tam process usually involves many factual and legal issues that present potential obstacles to a successful recovery, whistleblowers need to be aware of certain information to avoid missteps that can derail their whistleblower lawsuit.  This blog outlines five key facts claimants should know about protecting their rights and navigating qui tam claims.

Documentary Evidence Supporting Claims Is Key.

While government prosecutors and judges are motivated to recoup funds misallocated by the fraud of others, there is a general assumption that the vast majority of businesses do not engage in lawbreaking behavior.  When you discuss your situation with an attorney, it is advisable to have tangible evidence to support your claim.  Most successful whistleblower cases depend on more than just testimony by the party disclosing the illegal or fraudulent conduct.  Written documentation like medical records, emails, reports, data, financial records, billing statements, and notes typically is essential to prevail in qui tam actions.

The Scope of Qui Tam Liability Has An Expansive Reach.

Qui tam claims have existed since the Civil War, which is why the False Claims Act is called Lincoln’s Law.  However, recent modifications to the law and the enactment of other state laws that encourage whistleblowers to reveal fraud schemes against local and state government entities have expanded the reach of qui tam liability.  Federal laws now also allow qui tam claims to be brought based on banking fraud, unlawful securities activity, and tax fraud.  Government entities widely recognize the valuable role served by whistleblowers, so laws have been enacted to incentivize disclosure and provide legal protections to whistleblowers of a wide spectrum of fraudulent activity.  If you are aware of fraud committed against the government, it is worth seeking legal advice even if you are not specifically aware if the particular scheme is covered under a whistleblower law.

The Expertise, Knowledge, And Skill Of Your Attorney Makes A Difference.

The area of qui tam law is complicated and extremely technical, so it is essential to work with one of the small number of attorneys across the country who have a significant amount of experience handling these legal claims.  Successful prosecution of a qui tam claim involves both the extensive financial resources for document review and analysis, expert witnesses, forensic accountants/investigators, and other significant litigation costs.  Law firms that handle these claims also need sufficient manpower that includes both attorneys and support staff to gather, review, and analyze evidence.  When whistleblowers evaluate legal counsel, they should consider their specific experience with successful qui tam claims, litigation resources, and their understanding of the human side of these cases, such as concerns about employer retaliation.

Prompt Action Is Critical When Pursuing a Qua Tam Claim.

Since most laws that authorize whistleblower actions, such as the False Claims Act have a “first-to-file” rule, delay in seeking legal advice and initiating a qui tam claim can mean forfeiture of the right to a financial award.  While this does not mean a claim should be rushed prematurely, only the party who first files a claim disclosing fraud against the government is entitled to receive an award based on the public funds recovered.  This rule narrowly restricting who qualifies for an award necessitates obtaining legal counsel as early as possible.

The Act of Bringing a Qui Tam Lawsuit Is A Heroic Act.

Whistleblowers who expose individuals and businesses that defraud the government and endanger public safety are heroic because they risk potential retribution by their employers to protect the public interest.  The U.S. Department of Justice (DOJ) reports that the federal government has recovered $39 billion in taxpayer funds between 1987 and 2014 just under the False Claims Act.  While individuals who have exposed attempts to defraud the federal government under this statute have been rewarded with about $3.6 billion since 2001, the process can be long and arduous, so individuals that bring qui tam actions should be commended for their sacrifices.

At Barrett Law, our Mississippi Qui Tam Lawyers understand that individuals under the False Claims Act and other qui tam laws have concerns about reprisals by their employers, but we work with our clients to help protect their interests and maximize their award.  Contact our firm today at (601)790-1505 to schedule your free consultation, so we can answer any questions you may have regarding filing car accident case.

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Novartis Agrees to $390 Million False Claims Act Lawsuit

Novartis, the Swiss based multinational pharmaceutical company, has entered into a settlement agreement that requires the company to pay $390 million resulting from a False Claims Act lawsuit filed by a former sales manager.  The former employee blew the whistle on Novartis, one of the world’s largest pharmaceutical companies in terms of gross sales, for using kickbacks to bribe specialty pharmacies into inducing patients to refill Novartis drugs.  The settlement between the U.S. division of Novartis and the federal government as well as forty states was based on the practice of issuing kickbacks to dispense costly Novartis medications.  According to Reuters, the pattern of kickbacks extended from 2007 to 2012.

The False Claims Act lawsuit alleged that six different drugs were involved in the kickback scheme.  Specialty pharmacies were incentivized to push Novartis drugs to increase the number of refills of the medications.  More patients were allocated to those specialty pharmacies that were successful in pushing patients to refill the applicable expensive Novartis drugs, such as Exjade (an iron chelation drug) and Myfortic (a transplant drug).  The lawsuit also alleged that Novartis encouraged specialty pharmacies to minimize the potential side effects and risks associated with their medications.  Pharmacies were motivated to achieve shipping targets for the medications on a quarterly basis.  Allegations in the qui tam action also indicated that Novartis relied on what were referred to as “score cards” that indicated which pharmacies kept patients on the companies drugs for the longest period.

Bioscrip, one of the specialty pharmacies involved in the scheme, provided government prosecutors with information regarding their improper financial relationship with Novartis.  Representatives of Bioscrip reportedly admitted pushing patients to refill Exjade at the urging of Novartis.  Although Bioscrip also was ordered to pay $15 million, the company presumably received more lenient penalties in exchange for its cooperation with the DOJ.  Evidence also was provided by Accredo Health Group, Inc. which acknowledged setting up kickback that amounted to approximately $60 million according to settlement documents.

Despite the significant financial penalties leveled against Novartis, they brazenly continue to engage in the underlying conduct that motivated the qui tam action.  A Wall Street Journal report indicates that Joseph Jimenez, the Novartis CEO, defended the rebates to specialty pharmacies as a system intended to encourage patients to complete their course of treatment.  The pharmaceutical executive also claimed that the conduct is a common industry practice because pharmacies need to play a role in promoting patient adherence.

The recalcitrant stance taken by the drug company is easy to understand based on financial data.  The company’s 2014 annual report indicated that the drug manufacturer reported $58 billion in net sales and nearly $11 billion in free cash flow.  The massive profits generated by the drug company’s elicit practices explain its willingness treat massive fines as a cost of doing business while persisting in fraudulent schemes that endanger the public.

The whistleblower who filed this lawsuit will receive a significant award for filing this action under the False Claims Act.  Whistleblowers who reveal these types of pharmaceutical industry practices serve a vital function by promoting public safety and exposing fraud.  At Barrett Law, our Mississippi Qui Tam Lawyers work to protect individuals who expose corrupt and unlawful practices while seeking the fullest compensation for whistleblowers.  Contact our firm today at (601)790-1505 to schedule your free consultation, so we can answer any questions you may have regarding filing car accident case.

 

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