Do you Have A Case
There are many questions that you need to explore to see if you have a potentially successful qui tam case before you seek an attorney. Taking the time now to analyze your position can save a lot of time and frustration later. It is a good idea to be able to focus the fraud as much as possible. If your allegations are all over the map and very general, it will do you no good. Focus is important. Also, being able to sit down and compose the scheme, the elements of the fraud and evidence, and a timeline, would be very helpful to provide to a prospective attorney.
First and foremost, you must ascertain that what you see is fraud and not just waste and mismanagement. The government cannot sue a contractor for mismanagement, waste, abuse, or stupidity on its part or on the part of the government. Also, you cannot go after the federal government or state governments, as much as you may want to. Qui tam is not a tool to go after the government. It’s important to understand that qui tam is a provision of the False Claims Act meaning you would have to prove there was a false claim made to the government.
Some situations that appear to be intentional fraud may turn out to be a contractual dispute, the government agent’s nonfeasance, or just plain mistakes. As you are examining the fraud, keep in mind that the government agent that may be approving it cannot obligate the government beyond the rules and regulations of the government. Most of the time, a government agent in this potential predicament would feign ignorance to the fraud and not admit to acquiescence.
You also need to ascertain if federal money is involved in the fraudulent payments to the contractor. This could include state, city or county money that was given to a local government by the federal government or through matching funds for many different federal programs and grants. For example, states run the federal Medicaid programs, but the money, or part of the money, originated with the federal government.
You need to examine how widespread the fraud is in the company. Whistleblowers often see only a slice of the fraud and you increase the odds of a successful and large recovery for the government if you suspect that the fraud is systemic or wide spread. Although sometimes it is hard to tell how far the fraud goes without company records, it is useful to carefully check with other employees or former employees on whether they experienced the same fraud in their departments. Also, it can be helpful to have more than one whistleblower on the lawsuit, especially if each has seen the same fraud in different areas of the company.
How old is the fraud? The statute of limitations for the False Claims act is generally six years, but can be longer under certain circumstances. You need to know how old the fraud is so that you and your attorney can decide about the statute of limitations.
The type and amount of your documentation is going to be very important. It helps to have emails, notes, diaries or logs kept by you of fraudulent activity, but actual documentation, or paper trail, from the company records that support your claim will strengthen your case much more. Without internal company documents, your accusations of fraud could turn into your word against a group of powerful executives. As an example, records of billings, memoranda, emails, time cards, and computer printouts can be very helpful depending on what the fraud scheme is. However, be aware that it could be illegal to remove certain company records and you should consult legal advice before removing anything that could be deemed as company proprietary or confidential.
Organize your documents in a coherent manner before you talk to an attorney. NEVER give an attorney or anyone else, your original documents, only provide copies, and it is advisable to have copies of your documents stashed somewhere other than in your house. Documents have the confounding habit of disappearing just when you need them. Protect them well since they may be the most important aspect of your case.
If you do keep a log or notes, don’t enter your personal observations and prejudices and try to keep it dry and factual. Remember to date each entry. If you have an especially memorable event, write yourself a memorandum for the record, either in writing or on a computer, and mail a copy to yourself or make sure the date is recorded by computer. This way, if it comes down to your word against others, you have a postmarked or digitally date recorded memorandum written at the time of the event.
One of the first things an informed attorney will want to know is if you are an “original source” of the information. There are several exceptions to your standing as an “original source” and you should be knowledgeable about them before you go to an attorney.
Many types of people can be a qui tam relator if an original source of the information, but some are more successful than others. Although there is currently no law against a federal employee filing a qui tam case, the Department of Justice looks upon them with prejudice and may file a court challenge to remove the federal employee as a relator. Also the courts do not look favorably on federal employees as relators. One possible solution is to get another whistleblower on the suit with the federal employee who works for the defendant company. State employees are not as likely to have this problem because the Department of Justice will not have the same prejudices against them. If you are a subcontractor or a private contractor, you can have a successful qui tam case, but most likely will not be protected under the whistleblower clause of the act.
If you decide there is a fraud against the government that would qualify as a qui tam action and you have obtained good information substantiating the fraud, be careful whom you talk to, especially if you are still working at the company committing the fraud, about the matter. You will be surprised how quickly information will leak out and jeopardize your efforts. Also, be careful of so called “internal hotlines.” There have been many horror stories of employees providing information about fraud through a company hotline and having the company end up investigating, discrediting, and harassing the whistleblower. There have been cases where “internal hotlines” were used as a tool to identify potential “troublemakers” that they can harass and force out of the company. As a general rule, company hotlines are good for those who would blow the whistle on individual employees who, for example, mischarge on their timecard because they were late for work, but does not tend to work when information is provided about systemic fraud that may be known and directed by high level management (high level management normally operates the hotline).
Also, be careful about reporting the fraud to the government as there have been many instances of the information, and the identity of the whistleblower, leaking back to the company. Your best bet, if you feel the need to report the fraud to the company, or the government, is to seek advice regarding your options before you do so. However, if you do report the fraud to a government agent, be sure to document that disclosure as it will qualify you as an original source later if you file a qui tam action.
There is also a prohibition in the qui tam law against public disclosure prior to filing. That is if the fraud has already been made public, especially through the media, you are barred from bringing a qui tam action unless you can prove you were the original source of the information. So, if you are contemplating a qui tam action, don’t go to the media even though you might be outraged at the fraud.
Finally, there are a series of personal questions you should answer after consultation with your family. Whistleblowing is not an easy process and a qui tam case can drag on for years. Think about your answers to the following questions:
- Are my family and I financially and mentally ready for a protracted fight to prove the fraud and try to retain my job?
- Am I mentally ready to have my fellow workers and perhaps my friends turn against me because of my lawsuit if I am identified as a whistleblower.
- Am I ready for personal attacks against my character and to have my past indiscretions made public? Also, are you ready for a company to come up with “dirty laundry,” true or not, to discredit you?
- Do I have adequate documentation to prove my charges without having to return to my workplace?
- Am I sure that my motivations are to expose the fraud to recover money for the government and not just sour grapes, revenge, or public attention. (All these things fade as the case drags out and will not sustain you in your fight.)
- Am I financially and mentally ready to change my career to work outside my current field?
- It is important for you and your family to come to an agreement on whether you should file a suit. All whistleblowing activity has proven to be very hard on a whistleblower’s personal life.
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