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False Claims Act Attorneys

Representing Plaintiffs (Whistleblowers) and Defendants in FCA/Qui Tam Cases Nationwide

Lynette Byrd
Attorney Lynette Byrd
False Claims Act / Qui Tam Team Lead
Former DOJ Attorney envelope iconContact Lynette
Nick Oberheiden
Attorney Nick Oberheiden
False Claims Act / Qui Tam Team Lead envelope iconContact Nick
Kevin M. Sheridan
Kevin M. Sheridan
False Claims Act / Qui Tam Consultant
Former FBI Special Agent
Wade McFaul
Wade McFaul
False Claims Act / Qui Tam Consultant
Former HHS-OIG Assistant Special Agent-in-Charge

Oberheiden P.C. has significant experience representing both plaintiffs and defendants in False Claims Act / whistleblower cases. Our team of lawyers, which includes former U.S. Department of Justice (DOJ) prosecutors, has represented clients across the United States in cases involving healthcare fraud, tax law violations, and other types of “false and fraudulent” claims.

While most corporate law firms represent only defendants, we represent both plaintiffs and defendants on a first-come, first-served basis.

The False Claims Act Explained

The False Claims Act applies to any individual or business that directly or indirectly contracts with and is paid for services by the United States government. It creates liability for any person or business that knowingly submits or causes to be submitted a false or fraudulent claim with intent to secure payment or approval from a federal office or agency.

The knowing submission of a false or fraudulent claim can involve either actual knowledge or the failure to conduct due diligence. In other words, if an entity or individual should have known that it was billing the government improperly, this is enough to establish a False Claims Act violation.

What Are the Penalties?

These investigations present severe challenges to any business because the statute contains both civil and criminal penalties and it is often not clear at the beginning of a case whether the government investigations civil in matter or if the government intends to press felony charges against the business owners.

  • Civil Liability: Triple damages and a penalty of up to $ 11,000 per claim for anyone who knowingly submits or causes submission of a false or fraudulent claim to the United States.
  • Criminal Liability (18 U.S.C. § 287): Healthcare providers who intentionally present fraudulent claims to the government for reimbursement with the knowledge that such claims were false, fictitious, or fraudulent are exposed to five year imprisonment and a fine of $ 250,000 (individuals) or $ 500,000 (companies) for federal felony convictions and $ 100,000 (individuals) or $ 200,000 (companies) for misdemeanor convictions— for each claim.

What Is a Qui Tam Lawsuit?

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Most investigations under the False Claims Act are not initiated by federal agencies, but instead by current employees, former employees and competitors who report suspected violations to the government. The False Claims Act contains a provision that allows private citizens (referred to as “relators”) to file qui tam lawsuits to recover monies on behalf of the United States. A qui tam lawsuit must allege that an individual or a business has defrauded the federal government by submitting a false or fraudulent claim (or multiple false or fraudulent claims).

Filing a Qui Tam Lawsuit: What to Expect as a Plaintiff

What can you expect as a plaintiff in a False Claims Act lawsuit? Here is an overview of the qui tam process:

Complaint. The qui tam relator (the plaintiff) files a complaint against an individual, a business, or both (the defendants) in federal court. To protect the anonymity of the plaintiffs, qui tam lawsuits are filed under seal and the court’s clerk will provide a copy of the complaint only to the assigned judge and certain government officials at the U.S. Attorney’s Office. Extensions to keep the case sealed are regularly granted for segments of six months and can be renewed until the government had a chance to investigate the matter.

Evidence. The government will immediately reject entirely unsubstantiated complaints. However, if a complaint appears to be substantiated, the government may investigate the facts with the help of federal law enforcement agencies such as the FBI, the DEA, or the U.S. Attorney’s Office. This factual investigation is typically done through OIG subpoenas that require the accused wrongdoers to produce corporate, financial, billing, business, and communications records.

Government Intervention. Upon review of these records, the government will decide if it will support the plaintiff and intervene in the case or whether it will drop out and let the relator continue on its own. Intervention requires approval from the DOJ’s Washington D.C. headquarters. If the government intervenes, the DOJ will typically amend the complaint to include additional causes of action, such as Anti-Kickback Statute and Truth in Negotiation Act violations.

Case Settlement. Parallel to the government serving subpoenas (and thereby notifying the defendants of the pending litigation), negotiations between the government and the defendants’ lawyers will typically take place. However, depending on the complexity of the case, it may take several months before the government starts evaluating a qui tam complaint and even longer before an open matter is fully resolved.

Liability and Rewards. If found liable, the defendant (or defendants) may be ordered to pay as much as three times the government’s losses plus penalties of up to $ 11,000, per claim, which can quickly amount to millions of dollars. The law incentivizes qui tam plaintiffs by allowing them to keep up to 25 percent of any amount collected if the government intervenes in the litigation and up to 30 percent if the plaintiffs collect on their own without the government’s involvement beyond the investigative stage.

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FCA Whistleblower Attorney

Mounting an Effective Qui Tam Lawsuit Defense

For corporate entities and individuals facing the threat of qui tam litigation, organizing a sound defense strategy is essential to mitigating the risk of disruptive government intervention and costly financial repercussions in the form of fines and drawn-out trial proceedings. Qui tam suits are those associated with claims filed by private citizens (also known as “relators”) on behalf of the federal government. After a suit has been submitted, the government has a statutorily-mandated obligation to conduct a formal investigation and make a subsequent determination as to whether or not to initiate action from the prosecutor pertaining to the alleged fraudulent activity.

Qui Tam Defense: Pre- & Post-Intervention Methodologies

Although filing a qui tam lawsuit under the False Claims Act only requires a relatively bare-bones allegation of fraud, far more evidence is required – both in substantive and procedural respects – for the litigation to progress past the opening pleading phases and ultimately result to a finding of criminal or civil liability against a given defendant. Substantiating liability under the False Claims Act is a notoriously difficult undertaking. Businesses and individuals facing accusations of government contract fraud, Medicare fraud, and other forms of government fraud will often have several potential defenses available.

Defending Against Qui Tam Allegations: What to Expect

Under the False Claims Act, there are two main routes the DOJ can pursue to advance civil claims for reimbursement and related criminal penalties against a defendant.

The first is via a government-initiated investigatory scheme. The Federal Bureau of Investigation (FBI), the Department of Health and Human Services (DHHS), and several other related federal entities routinely conduct investigations of individuals and businesses for submitting inaccurate and fraudulent claims to the government. And based upon the subsequent evidence garnered during these reviews, the DOJ can either initiate a civil lawsuit under the False Claims Act or seek criminal charges against the offender, depending on the severity of the statutory violation.

The second process that individuals and businesses can encounter potential liability under the False Claims Act is through a private citizen-originated legal action per the statute’s whistleblower/qui-tam clauses. This has both significant overlaps and unique distinguishing factors from government-initiated enforcement proceedings.

Some of the most commonly implemented defense strategies in qui tam cases under the False Claims Act include:

  • Procedural Inconsistencies: As is the case in all categories of federal government litigation, relators in qui tam claims must remain complaint (and often strictly so) with the Federal Rules of Civil Procedure (FRCP). Relators would not be granted a free ‘pass’ on any technical and procedural shortcomings, regardless of any potential justifications they may attempt to offer. Calling out and formally challenging these deficiencies from the onset of the litigation proceedings can often, at the very minimum, slow down the legal process against a corporate defendant and start to raise questions from a judicial and governmental perspective about the legitimacy of the relator’s case – a key step in reducing the risk that the government will ultimately choose to dedicate its resources to advance the initial claim. This is why it’s important to have an experienced false claims act attorney on your side.
  • Failing to File Requisite Disclosure Statement: In addition to the initial formal complaint (which is the document that is filed in federal court to start the qui tam legal process) the relator must also submit a disclosure statement to the Department of Justice. Specifically, this statement must include the following clause in order to be deemed legitimate in a court of law: “substantially all material evidence and information the [relator] possesses.” While the disclosure statement is not initially provided for review to the defending party, issues later made discoverable, regarding the pertinent details the relator might have overlooked when drafting the disclosure statement, may lead to grounds for seeking dismissal of the case in its entirety.
  • Insufficient Evidentiary Backing to Prove Liability: In order to establish liability pursuant to the False Claims Act, the relator’s allegations and supporting evidentiary record and documentation must substantiate a judiciary’s finding of a requisite specified level of intent. In general terms, offering an inaccurate invoice or billing for payment to the government does not, on its own volition, subject an entity to liability for federal fraud under the False Claims Act. To be successful in qui tam litigation, the government and cooperating relator must typically be able to prove, at a minimum, that the defending party should have known about the purported fraudulent activity being attempted. Thus, even in instances involving legitimate allegations of false claims, defendants will oftentimes be able to offer mitigating counter evidence to avoid False Claims Act prosecution.

Proven Qui Tam Lawsuit Defense Strategies

The difference between human error and liability is often a fine line that requires convincing negotiation skills, industry experience, and attention to details. The false claims act attorneys and former government officials of Oberheiden, P.C. have handled cases throughout the United States. The following are our maxims and guiding principles:

  • No Criminal Charges. Our top priority in every False Claims Act case is to avoid criminal charges. Years of experience as former federal prosecutors in charge of investigations and a focused practice on FCA litigation allow us to quickly determine whether the investigation is civil or criminal, what the government’s objectives are, and how to efficiently resolve the matter.
  • No Government Intervention. As defense counsel, we vigorously confront the plaintiffs’ allegations by all means available. Doing so is critical to convince the government that the allegations lack merit and do not deserve government intervention and support.
  • Favorable Resolution. In instances in which civil penalties are likely, we have negotiated our clients’ liability to a fraction of the government’s demand. To date, not a single settlement forced any of our clients to cease operations or to close their business.
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What Are the Penalties for FCA Violations (and How Much Can Plaintiffs Receive)?

Qui tam lawsuits present significant risks for defendants (and significant financial incentives for plaintiffs) because the False Claims Act contains provisions for both civil and criminal penalties.

The potential civil penalties associated with qui tam cases pursuant to the False Claims Act can be significant. The maximum allowable penalties under the statute include payment of three times the government’s expenditures (commonly referred to as “treble” damages) in addition to fines of up to $11,000 per false claim the defendant is deemed liable for. What exactly constitutes an independent “false claim” in qui tam litigation is often construed by the court quite narrowly – meaning defendants can potentially face hundreds of thousands or millions of dollars in civil liability debt.

  • Civil Liability: Triple damages and a penalty of up to $ 11,000 per claim for anyone who knowingly submits or causes submission of a false or fraudulent claim to the United States.
  • Criminal Liability (18 U.S.C. § 287): Healthcare providers who intentionally present fraudulent claims to the government for reimbursement with the knowledge that such claims were false, fictitious, or fraudulent are exposed to five year imprisonment and a fine of $ 250,000 (individuals) or $ 500,000 (companies) for federal felony convictions and $ 100,000 (individuals) or $ 200,000 (companies) for misdemeanor convictions— for each claim.

As noted above, if the federal government succeeds in securing financial recourse from a qui tam defendant, the plaintiff is entitled to receive up to 30 percent of the amount recovered. Plaintiffs are entitled to 30 percent if the government declines to intervene, and they are entitled to 25 percent if the government takes control of the litigation and either secures a verdict or negotiates a settlement with the defendant.

Frequently-Asked Questions (FAQs): False Claims Act / Qui Tam Lawsuits

Q: What constitutes a “false claim” under the False Claims Act?

When discussing whistleblower litigation and corporate defense strategies in qui tam actions under the False Claims Act, it is worth stepping back to examine what constitutes a “false claim.” Broadly speaking, a false claim is any request for payment from a government agency or benefit program that either (i) violates the terms of a government contract, or (ii) is non-compliant with the applicable billing rules and regulations. Under the False Claims Act, each individual billing constitutes a separate false claim, so it is not uncommon for whistleblower cases to involve hundreds or thousands of alleged False Claims Act violations.

Q: What are the penalties for submitting a “false claim” under the False Claims Act?

In civil litigation under the False Claims Act, potential penalties include treble damages and fines as mentioned above, and certain companies can face other penalties as well. For example, government contractors can face contract termination, and healthcare providers can face loss of federal benefit program eligibility.

Q: What are the chances that the government will intervene?

The likelihood of government intervention in a qui tam action under the False Claims Act depends on various factors ranging from the severity and evidentiary support for the relator’s allegations to the defendant’s choice of legal counsel. The false claims act attorneys at Oberheiden, P.C. have had significant success with False Claims Act matters preventing government intervention in False Claims Act cases. Relying on our False Claims Act and whistleblower attorneys’ and former federal agents’ combined experience in high-stakes federal matters, we are able to utilize various defense tactics to convince prosecutors that intervention is unwarranted.

Q: What are the chances that intervention will lead to civil or criminal prosecution?

Of course, there is no guarantee that intervention can be avoided, and in some cases defendants will need to focus their efforts on avoiding civil or criminal prosecution. Critically, the government’s processes for deciding to intervene and deciding to press charges are very different; and, even after intervention, there are various defense strategies that can be used by your false claims act lawyer to fend off federal charges.

Q: What are the whistleblower’s chances of succeeding in private litigation if the government declines to intervene?

When the government declines to intervene in a qui tam action under the False Claims Act, this is usually the end of the matter. But, in rare circumstances, the relator will decide to pursue his or her allegations independently. While the relator’s chances of success in these circumstances are typically fairly low, companies cannot afford to let down their guard, and an experienced whistleblower lawyer must be engaged to fight the relator’s federal lawsuit.

Q: Can the government decide to only pursue select allegations outlined in the whistleblower’s lawsuit?

 Yes. In whistleblower litigation under the False Claims Act, intervention is not an “all or nothing” proposition. If federal prosecutors believe that some (but not all) of the relator’s allegations are adequately substantiated, then they can elect to intervene on whistleblower claims only with respect to those specific allegations.

Q: Can a qui tam action under the False Claim Act lead to other statutory charges as well?

Yes. If the government decides to intervene, it is not limited to pursuing charges for the False Claims Act violations alleged in the relator’s complaint. In fact, it is fairly common for prosecutors to pursue additional charges as well, including charges under the Anti-Kickback Statute (AKS), the Stark Law, and the Truth in Negotiations Act (TINA).

Q: How long do I have to respond if the government intervenes and files a complaint?

If the government intervenes, it will typically file its own complaint in federal district court. Once the government serves its complaint, you have 20 days to file an answer or a motion to dismiss.

Q: What are the potential outcomes if the government intervenes and files a complaint?

If the federal government intervenes and files a complaint, there are a few potential outcomes. First and most importantly, it is still possible at this stage to resolve the matter favorably prior to trial. At Oberheiden, P.C., we have had significant success resolving clients’ cases at this stage as well. If the government won’t negotiate a favorable plea deal and it is not possible to have the charges dismissed, then litigating in court may be necessary, and there are several defenses that can be asserted to avoid or mitigate any potential liability.

Q: When is it time to engage federal defense counsel?

If your company is facing a qui tam lawsuit under the False Claims Act, you need to engage federal defense counsel promptly. Our lawyers and investigators are available 24/7, and we can start working to prevent intervention immediately.

Why Do Plaintiffs and Defendants Trust the FCA/Qui Tam Lawyers at Oberheiden, P.C.?

A law firm’s reputation is its most prized possession and its most hard-won asset. It must be earned, not given. We are proud of the immense trust that our clients place in us on a daily basis. Here are just some of the reasons why our clients choose us for whistleblower cases under the False Claims Act:

1. Experience

Our lawyers have been battle-hardened by experience navigating the byzantine corridors of the federal legal system. If you simply wish to minimize your risk of being investigated in the future, we can provide you with sound guidance on regulatory compliance issues. If an investigation has already begun, we can intervene decisively, since there simply isn’t much that can happen that we haven’t seen before. If you have information about fraud committed against the government, we can guide you step-by-step through the whistleblower process.

2. Perspective

Whether you are a whistleblower or you are facing a federal investigation, the Oberheiden, P.C. difference is perspective. Several of our lawyers joined the firm after years of serving with distinction as federal prosecutors with the DOJ. Our experience on the other side of the table provides us with the broad perspective on our clients’ cases that simply cannot be matched by any other experience.

3. Results

The first concern of most clients facing a federal investigation is how to minimize or completely eliminate the chance of penalties such as fines or incarceration. We are fully confident in our ability to secure the best possible outcome for you because we have done it for many clients before. In fact, many of our clients walk out of our office for the last time with no civil or criminal liability. We also strive to achieve your legal objective in a prompt and cost-effective manner. For plaintiffs, we rely on our experience to protect their rights as whistleblowers and secure the rewards to which they are legally entitled under the False Claims Act.

4. Team Approach

The federal government is the nation’s largest employer and its richest organization. If you are facing allegations of fraud, its vast resources will be deployed against you in the form of a team of investigators, federal agents, and prosecutors gathered together to handle your case. Should you choose to retain our qui tam lawsuit defense lawyers, we will form a team to handle your case. We work in a cohesive and synergistic manner that maximizes the effect of the efforts of the individual attorneys that make up our team. As a plaintiff, our lawyers will work with you one-on-one to make sure we have all of the information we need and that you feel informed and confident every step of the way.

5. Commitment

At Oberheiden, P.C., trust is an indispensable virtue, because it is the one virtue without which all others would be useless. Our policy is to treat each of our clients’ cases with the same urgency and emphasis that we would exercise if it were our own.

Connect with an Experienced Qui Tam/False Claims Act Lawyers Today

Do you have information about a False Claims Act violation? Or, are you (or is your company) facing allegations of government fraud? If so, contact us to discuss your situation with a False Claims Act lawyer at Oberheiden P.C. in confidence. Call 888-680-1745 or submit our online contact form to schedule an appointment today.

– Sr. Defense Team

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