If you are an employee, contractor, subcontractor, or owner whose business depends on providing good or services to the government or from reimbursements from the government (as with Medicare, Medicaid, and other government programs), then you need to be conscious of your liability under the False Claims Act (FCA). Essentially, anytime you submit a claim for payment to the federal government for goods or services which differ from what you actually provided in quantity and/or quality, you may find yourself the subject of an FCA claim. What makes FCA claims different from other enforcement actions brought by the federal government is that they are generally prompted by whistleblowers both within and outside of your company who provide information regarding alleged FCA violations to the government. Because these whistleblowers stand to personally make 10% to 30% of whatever is recovered in an FCA suit – with dozens of whistleblowers walking away with tens of millions of dollars every year – there is a high incentive for whistleblowers to bring an FCA claim. But, as a target of an FCA claim, you may not know for months or even years that the government is preparing a massive case against you potentially based on internal information.
How FCA Claims Blindside Companies
Typically, a whistleblower who has information he or she thinks points to an FCA violation will reach out to plaintiff’s attorney who will further investigate the matter, and will take all necessary steps to prevent the company at issue from finding out about the potential claim. That attorney will then file an FCA claim in federal court, but, again, the company or individual being targeted will not be made aware of the claim as the federal judge will keep it under seal.
The Department of Justice (DOJ) will then have an opportunity to join in as a party to the FCA claim. If the DOJ decides to do so, then the whistleblower – who might be an employee, a competitor, a contractor, or even an industry observer – will have the full weight of the federal government behind his or her claim. It is often only when the DOJ has completed its investigation into the alleged wrongdoer that the company or individual finally becomes aware that there has been a pending FCA claim brought against them, often by a current employee who has been with the company for years, and the company is blindsided by the fact that someone in its ranks has been providing information to the federal government for months and even years.
What to Do If You Suspect a Potential FCA Claim
It is difficult to provide general signs to look for in assessing whether you are the subject of an FCA claim, but certainly if the company at issue is in the business of providing goods and services to the federal government and there have been unresolved internal allegations relating to potential FCA violations, that might be a good start.
What is critical, however, is for anyone involved with the company to avoid acting unilaterally without the guidance of an experienced federal criminal defense attorney. Taking steps to address potential whistleblower actions can result in claims of illegal retaliation and even obstruction of justice if not done properly in accord with state and federal law. Furthermore, internal investigations conducted without the oversight and guidance of an attorney can potentially incriminate the company as any such communications or findings could be discoverable.
If, for any reason, you suspect potential FCA violations or an FCA claim, you should immediately contact an experienced federal criminal defense lawyer who can provide confidential guidance on the proper steps to take.