Is Biden Changing the False Claims Act?

Whistleblower Attorney Help Clients Confidentially Report Fraud Nationwide

Video Transcript:

Jason Brown:

And you can't underscore how important enough, this is. It's doing a public service, it's doing a public good. 

Rob Rosenthal:

So do you know what the False Claims Act is and how it might be affected by the new administration in Washington? Well we're gonna find out right now 'cause that's what we're going to Ask the Lawyer. Hi again everybody, I'm Rob Rosenthal with AskTheLawyers.com. My guest is New Jersey attorney Jason Brown. I wanna remind you right off the top, if you'd like to ask Jason questions about your situation, it's easy to do. Head over to AsktheLawyers.com, click the Ask a Lawyer button, which is up in the upper right hand corner, And they'll walk you right through the process, Jason, it's always good to see you, thank you for helping us out today.

Jason Brown:

Great to see you. Good morning.

Rob Rosenthal:

Well, let's start as always with our little definition to explain, for those of us who aren't attorneys, what the False Claims Act is.

Jason Brown:

The False Claims Act is a statute in which ordinary individuals have a mechanism to report systemic fraud against the government and potentially receive a whistleblower award up to 30% of what the government captures, so it could be quite a powerful statute and has been quite powerful over the last several decades.

Rob Rosenthal:

Well, most people probably realize we... Hopefully, that we have a new administration in Washington, is that affecting the False Claims Act at all?

Jason Brown:

Well, thankfully, the strident protections under the False Claims Act have been robustly enforced by both sides of the aisle, and in fact, there's some exciting news coming out of Congress in its efforts to bolster the False Claims Act. Just to give an example though about the pace of things. Last year, $2.2 billion was settled under the False Claims Act, that's over half a billion dollars available for whistleblowers who are courageous enough to do the right thing. This year, we're on pace at $500 million for the first half for the reported settlements, not the year-end audit, and those sentiments come from a variety of different frauds that have been re-dressed, such as Medicare fraud, Medicaid fraud, defense contractor fraud, the emerging topic of PPP, COVID-related fraud and kick-backs, 'cause there's just been a huge $160 million settlement regarding pharmaceutical kickbacks. In short, if you see something, say something, but say it the right way, or else your case is gonna go astray... 'cause there's over a half a billion dollars available for people who wanna do the right thing.

Rob Rosenthal:

I think it's worth mentioning Jason not only that fraud is our money, that's taxpayer money that's being defrauded, but then yes, there's also... There's incentive on top of that for people to blow the whistle.

Jason Brown:

Yeah, it's recapturing the money of the tax payer, and you can't underscore how important enough this is. It's doing a public service, it's doing a public good. And on the flip side, there's public harm, not just economically from a lot of these cases, but sometimes physically to patients when doctors are doing unnecessary procedures just for the extra payments, when doctors are using unnecessary products or test products and billing it improperly and defrauding Medicare, sometimes the patients don't need it, and there can be terrible consequences, I can't reveal the details about a case that we're involved in, but in one case, a doctor's conduct has led to unnecessary amputations, so there's horrific potential consequences of just staying silent, and there's rewards for coming forth and doing the right thing.

Rob Rosenthal:

So you mentioned some changes that might be coming up in Congress amendments or something... What's going on there?

Jason Brown:

Well, it's rare to hear Congress agree upon anything. One time where I think watched the filibuster when they were arguing about pizza versus pasta, which is ridiculous because everybody knows is pizza, but there's a bipartisan, both sides of the aisle have come up with some solutions to bolster and strengthen the False Claims Act. Defense attorneys have been utilizing certain tactics to try to undermine cases, something... There's a Supreme Court opinion called Escobar regarding materiality. There's also, sometimes what they do is a self-serving tactic where they serve hundreds of thousands of worth of discovery on the government and the plaintiff/relator, and then say It's gonna cost too much, so the case would be dismissed and the statute that's proposed by both sides of the aisle, or rather the clarification in the statute seems to have some good support, and hopefully we'll get through Congress and make a good statute even better.

Rob Rosenthal:

So let's talk about blowing the whistle, let's say somebody is aware of, or it's pretty sure they're aware of Medicare fraud, how do they blow the whistle, Jason, do they contact the government directly and say, Hey, I know about something bad going on?

Jason Brown:

Let me tell you... No, and I really should put a footnote there, so occasionally, if you don't want to receive a whistleblower award, yeah, go ahead, contact the government, but if you are interested in putting your name behind something, and at the end of the day, receiving potentially 30% of what the government recovers, you have to do it the right way, and you need to have a whistleblower law firm who files the case properly under seal... Notifying the Department of Justice, notifying the local United States Attorney's office. And there's all these little pit steps and perils along the way, that if you do the wrong thing, you're gonna step on a land mine and blow your case out of the water before it even begins.

Rob Rosenthal:

So you said you need to go to a whistleblower law firm. Not every law firm is a whistleblower law firm, you can't just pick an attorney?

Jason Brown:

Well, most attorneys that handle successfully the False Claims Act, I shouldn't say most, there's a tiny cabal of attorneys that actually have successfully litigated False Claims Act litigation, and I think it's important that you steer away from a mom and pop shop. God bless them. The general practitioners do great things, and there's some lawyers that do great things, but you really need a law firm that focuses in on this area of law that could seamlessly interface with the Department of Justice. I was fortunate enough to serve the country in the capacity as an FBI Special Agent and legal advisor. I like to think that we do a nice job interfacing with the government at the end of the day, but if you don't go with somebody that really focuses on this area of law, you have the potential to inadvertently step on one of those land mines and lose your case before it even begins.

Rob Rosenthal:

It seems like oftentimes when you're dealing with the government, things move at a glacial pace. How long does a whistleblower case generally take?

Jason Brown:

That's a pretty word to describe what sometimes is a very long process, it's not unheard of, and we have settled cases in under a year. But that's the exception, rather than the rule. You're looking at probably minimum three to four years, and what happens is while the case is under seal, that means it's confidential, the defendant, the person who's doing or the entity that's doing the wrong doing will not find out about the litigation, so people who are truly whistleblowers inside that company, a corporation will have time to plan for their parachute. The government in that time is going to be investigating the defendant, both civilly and potentially criminally. So it can take quite some time. I would give you an average of three to four years, you definitely have a six months to a year heads up before the cases reveal to your employer, but we will give you every opportunity to plan and we work with our relators, relators is another word for plaintiffs, in the whistleblower False Claims Act space about what to do and the timing of things about when it's unearthed.

Rob Rosenthal:

I gotta think, one of the things you hear from people who are blowing the whistle is retaliation, they're worried about retaliation. Tell us why that may not be a worry. Is that something they need to worry about?

Jason Brown:

Well, the statutes itself, not just the False Claims Act, by other statutes we invoke when we file these cases, stridently protect the whistleblower. So Congress is incentivized and the DOJ is incentivized to keep courageous individuals in employment when they blow the whistle, so can the employer take action? Yeah it's a possibility, it may happen, but since you have all this time to plan, we will work with individuals to try to strategize about what an exit route is if the individual wants to leave, and of course, if the individual wants to stay based upon the statute, we most of the time will potentially file another lawsuit if they're retaliated against based upon the revealing of the underlying False Claims Act. By the way, it generally seems to happen at the end of the day, most whistleblowers do leave the workspace for one reason or another, they don't wanna be there, or the company sometimes does do something retaliatory, and a lot of times whisteblowers under the law are handsomely paid for that portion of the case as well, in addition to the underlying monies that the government may receive.

Rob Rosenthal:

But I gotta think, avoiding the retaliation is another reason to do it the right way. If you do it the wrong way, then you're probably not as protected.

Jason Brown:

Yeah. That happens too much, too often. You see bad case law, you hear about cases where people thought they were blowing the whistle the right way, they're retaliated and fired and nothing anybody can do. So really, you should always seek legal advice early and often from a qualified firm that has a niche in the area of law that you're looking at, so you don't go to a heart surgeon for if you stub your toe and similarly, you're not gonna go to a domestic or family lawyer if you have a False Claims Act potential case.

Rob Rosenthal:

Last question, Jason, I don't know if we've talked about this before, but what if the whistle blower... Do they need to worry about, how much is this gonna cost me? AM I gonna have to have money on a pocket up front... How does that work?

Jason Brown:

Well, if they canvas the firms, and there's only a handful of firms which I would say have a track record of success like ours in this space, most of the firms, but not all of the firms will do these cases exclusively on a contingency basis, meaning the firm is only paid if they win the case. That's the situation with our firm, some firms do charge a hedge like $5,000, $10,000 up front or maybe more. We don't do any of that. If we take your case, it means we believe in your case, it means we'll dedicate our time, money and resources behind the litigation. At the end of the day, it doesn't make a difference if we spend $5,000 or $500,000 of cost prosecuting the case, if we lose, the client doesn't owe us a penny.

Rob Rosenthal:

Always informative whenever we talk Jason, thank you so much for answering our questions again today, I appreciate it. 

Jason Brown:

Thank you. 

Rob Rosenthal:

That's gonna do it for this episode of Ask the Lawyer. My guest has been New Jersey attorney Jason Brown. Remember, if you wanna ask Jason questions about your specific situation, it's easy to do, go to askthelawyers.com, click the button in the upper right and corner that says, Ask a Lawyer... That'll walk you through the process. Doesn't cost you anything to ask questions. Thanks for watching. I'm Rob Rosenthal with AskTheLawyers.

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