Why Whistleblowers Should Call a Qui Tam Lawyer, Not a Hotline
Oftentimes the first instinct when uncovering fraud is to keep it a secret from the public and contact an anonymous hotline that reports directly to the Government. While the instinct to keep the uncovered fraud a secret is a good one, the instinct to contact a fraud hotline is not. If you know about fraud being committed involving Government programs, such as Medicare, your first instinct should be to call an experienced False Claims Act qui tam lawyer – not the Government.
If you have already reported to a hotline or other law enforcement mechanism you are not always out of luck. You should still contact an experienced whistleblower attorney to determine if a qui tam claim can be brought.
Qui tam lawyers specialize in representing whistleblowers (also known as relators) who have information regarding fraud that is committed on the Government. Qui tam lawyers will often talk to you for free and the conversation is covered by attorney-client privilege and the qui tam lawyer’s ethical duties of confidentiality, which generally means that what you tell a lawyer cannot be disclosed to others or used against you. There is no downside to calling a qui tam lawyer, but the downside of reporting directly to the Government can be life-changing.
The Government frequently issues notices about reporting fraud to Government hotlines. For example, Government websites state: “If you suspect fraud call 1-800-MEDICARE or [click on a link].” DOJ Press releases often state: “Tips and complaints from all sources about potential fraud, waste, abuse, and mismanagement, can be reported to the Department of Health and Human Services at 800-HHS-TIPS.”
While this is an option to report fraud, it is usually not one that is in the best interest of the whistleblower. Reporting in this manner is akin to advising someone that “large flawless diamonds can be thrown overboard a ship into the ocean.” While true, it is a terrible idea – no offense to Rose at the end of Titanic (spoiler alert, for those of you who have yet to see the movie).
The Government represents taxpayers at large, not individual whistleblowers. The Government’s purpose is not to advocate for or on behalf of the whistleblower. That’s where qui tam lawyers come in. Qui tam lawyers advocate for and on behalf of their client – you, the whistleblower.
There are a variety of reasons you want to report fraud to an experienced qui tam lawyer instead of the Government. The first of which is the preservation of relator share. By reporting fraud directly to the Government, you forfeit your right to a reward (relator share) if the Government pursues the fraud before you file a qui tam lawsuit. If, instead, you report fraud to a qui tam lawyer, your lawyer will advise you on how to properly report the fraud, which may result in you receiving a monetary award. Awards range from 15-30% of the Government’s recovery, depending on a variety of factors.
Qui tam lawyers can also help you with the preservation of evidence, which includes both collecting evidence and preserving it. The proper preservation of evidence is important not only for proving a qui tam claim but also avoiding sanctions during litigation. An experienced qui tam lawyer can help guide you on what to do, and what not to do, in preserving and collecting evidence.
Another important item a qui tam lawyer considers is forum selection, meaning what is the best jurisdiction (location) to bring the qui tam lawsuit. Some jurisdictions are more relator friendly than others, and qui tam attorneys will conduct legal research to determine the pros and cons of each potential jurisdiction. Also, certain jurisdictions may have Government attorneys who are knowledgeable about a particular type of claim or have prosecute the fraudster in the past.
And, perhaps one of the most important things to whistleblowers, is that qui tam lawyers maximize retaliation protections for their client. There are anti-retaliation provisions that protect whistleblowers from adverse actions in state and federal laws. For example, if you are investigating a fraudulent scheme at work and your employer finds out and terminates you, then you may have a retaliation claim. Your retaliation claim is yours alone, it is not the Government’s claim. The Government will not pursue a retaliation claim on behalf of a whistleblower. Qui tam attorneys know how to use these provisions to protect and maximize recovery (monetary and non-monetary) for their clients.
To reiterate the importance of contacting a qui tam lawyer, consider this real-life example. In 2007, a couple of medical assistants working at a medical clinic witnessed two doctors filing fraudulent Medicare claims. Because they had not read the article that you are reading right now, they reported it to various government agencies, rather than to a qui tam lawyer. The Government pursued the doctors and obtained a restitution award of more than $37 million. The medical assistants eventually met with a qui tam lawyer and filed a case, but it was after the Government had already started to prosecute the doctors. When the medical assistants attempted to obtain a relator share, the court said, while acknowledging how unfair it was, that the medical assistants were not entitled to anything because they reported to the Government and the Government pursued the fraud before the relators filed suit. See United States ex rel. Babalola v. Sharma, 746 F.3d 157, 165 (5th Cir. 2014).
Fifteen to thirty percent of $37 million equates to $5.5 million to $11.1 million—that’s quite a valuable diamond to be tossed in the ocean for no reason, and would presumably have been life-changing money for these two medical assistants.
Moral of the story: If you know of fraud against the Government don’t throw your diamond into the ocean. Call a qui tam lawyer.
This piece was written by Gia Grimm, an Associate at Joseph Greenwald Laake and Cory Fein, Founder at Cory Fein Law Firm.
