If you are a
whistleblower, you want to make the Government love your case. (Wondering whether that’s
true? Read my legal blog post,
Why You Want the Government to Love Your Whistleblower Case.) I am a lawyer who represents whistleblowers, and you have reached the
last of a series of blog entries designed to help whistleblowers figure
out how to make their cases strong enough that the Government wants to
take them. Today we will be talking about “The Evil Factor”
and “The Easy Target.”
- Given that the Government takes only 20% or so of the cases that get filed,
how do you make your case fit into that rarified group? So far I have
covered 8 factors:
- Was the fraud big, so that the Government is going to get a significant
amount of money if it pursues your case?
- Separate and apart from the financial impact, are individuals getting hurt
by the fraud?
- Do you have strong evidence to prove your case?
- Has your attorney been able to put together the facts so that the case
is easy to understand, even to outsiders who do not know your industry?
- Who are you and why will the Government and a jury be compelled by your story?
- Were you fired because your employer hated the fact that you were trying
to stop the fraud?
- Do you know about a fraud that is currently on the government’s radar?
- Have your lawyer and you packaged the evidence and the law so that the
Government has as little work to do as possible?
Today we will cover the final two factors on the list:
Factor 9 – The Evil Factor
Occasionally what a defendant has done is so plain evil that the Government’s
lawyers will just burn to pursue justice through a False Claims Act case.
This factor is not necessary, but when it is present, it is very powerful.
For example, the Government spends years investigating most whistleblower
cases. But the Government can move with commendable speed when a case
is heinous enough. In 2013, the office manager of a medical practice went
to the United States Attorney in Michigan with a whistleblower suit, saying
that a well-respected doctor was falsely diagnosing patients with cancer
just so he could make money when he treated them with chemotherapy they
did not need. The doctor also was accused of giving patients more chemotherapy
than they needed, again to make a profit.
The Government responded with gratifying speed. The whistleblower filed
suit on August 5, 2013, and by the next day the
doctor was behind bars.
Factor 10 – The Stable Defendant
Years ago, when my practice first began to move toward representing more
and more whistleblowers in their qui tam cases, I took a case that I was
sure was a slam dunk. The documents were strong and the conduct was terrible.
The case hit most of the factors I have talked about in this series.
In fact, the evidence was so strong that when the Government approached
the defendant about the fraud, it did not put up much of a fight about
what it had done. Instead, it warned the Government that it would declare
bankruptcy and go out of business if the Government pursued the
False Claims Act case we had filed.
You will not always have access to the defendant’s internal financial
situation before you file suit. But if you can find evidence about whether
the Defendant will have enough assets to be able to pay a verdict or settlement,
provide it to the Government when you file your relator’s statement.
(“Relator” is the legal term for a whistleblower who files
suit under the False Claims Act.)
Additionally, if you do file suit and the defendant pleads poverty, do
not be afraid to ask for proof. After all, a defendant that is already
cheating the Government is not likely to be squeamish about lying to the
Government about whether it has assets to repay the money it stole.