We’re in the middle of a series just for
whistleblowers. If you are thinking about blowing the whistle, you need to
read my earlier blog post,
“Why You Want the Government to Love Your Whistleblower Case.”
Once you’re convinced, you need to know
how to make the Government love your case, and this blog post is one of a
five-part series designed to help you figure out how to make your case
so good that the Government wants to take it.
So far I’ve covered six of the top 10 things the Government is going
to look at it when it reviews the qui tam (whistleblower) lawsuit you file:
- How much money the Government lost (the more loss, the better);
- Whether the fraud is ongoing and it is hurting people, financially or physically;
- How strong your evidence is;
- Whether your attorney has put together a case that is easy to understand,
even to people who are not in your industry;
- Your story; and
- Whether you were fired from your job because you tried to tell the truth.
Today I want to talk about two more factors. These two areas may surprise
you, but they do matter.
Factor 7 – Type of Fraud
Fraud is fraud is fraud, you say? Believe it or not, when it comes to qui
tam cases, some kinds of fraud are more equal than others.
In some situations, the Department of Justice may make a conscious decision
to go after people committing a certain kind of fraud. For example, this
past year DOJ settled several cases against hospitals or surgeons that
were performing unnecessary heart procedures in order to collect Medicare
payments. The fraud involved “human harm” because patients
were receiving heart surgeries, carrying all the usual risks, that they
did not need.
Even when DOJ is not explicitly looking for certain cases, however, its
cases tend to clump in certain areas where fraud runs rampant. Overall,
DOJ statistics show that
healthcare fraud dominated the False Claims Act/qui tam landscape in 2015, as it has for
many years. A full 63% of the dollars that the U.S. recovered in qui tam
cases came from healthcare fraud lawsuits. The number is appalling, especially
given that only
24% of the federal budget goes to Medicare and Medicaid.
Factor 8 – The Bow on Top
When you file your case, it needs to be a beautifully gift-wrapped package
with a bow on top. One of the most serious mistakes a whistleblower can
make is to file a half-baked Complaint and expect the Government to “do
the research,” marshal the evidence and find the witnesses. That’s
your job, and it’s your attorney’s job to help you do that.
DOJ and the United States Attorneys’ offices have their pick of False
Claims Act cases. With so many cases to choose from, they have to decide
where to allocate their assets. Their attorneys and investigators have
only so much time, and they have limited war chests that have to cover
case expenses in a variety of cases, not just yours. Given the constraints,
the Government is far more likely to take an easy case than a hard one.
You need to convince the Government that your case is one of the very few
it will take this year. To do that, you want to make the case as easy
as possible. Your Complaint and relator’s statement need to clearly
lay out the fraud, as well as the laws, regulations or contract provisions
that were violated. Your research should be documented and the evidence
that supports your claims should be organized to make it easy for the
Government to see how it could prove your allegations if it took the case
to a settlement conference with the Defendant, or to trial.