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We are attorneys that investigate False Claims Act cases nationwide, including in the state of New Jersey for Medicare fraud, tax fraud, contractor fraud and more against a range of employers including healthcare providers, medical device companies, defense contractors, and pharmaceutical companies. We stand ready to provide a free case evaluation to you; please call us today.

False Claims Act’s Public Disclosure Bar

As False Claims lawyers we wanted to discuss briefly the Public Disclosure Bar.

I wanted to take a moment to discuss the public disclosure bar of the False Claims Act. The public disclosure bar provides that “no court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil or administrative hearing, in a congressional, administrative or government accounting office report, hearing, audit, or investigation, or from the news media, unless the. . . person bringing the action is an original source.”  31 U.S.C. § 3730(e)(4)(A).

For the bar to prevent a court from exercising jurisdiction, there must have been (1) a public disclosure, (2) allegations or transactions, (3) and one of the three for articulated in the statute, (4) the relator’s action must be based upon that public disclosure.  United States Ex Rel Lindenthal v. General Dynamics Corp., 61 F.3d 1402, 1409 (9th Cir. 1995).

One of the areas that comes up is when a particular disclosure is available through the Freedom of Information Act (FOIA).  “In the foyer context information cannot be deemed disclosed until a member of the public requests the information and receives it from the government.  Only then is the information actually, rather than theoretically or potentially, available to the public.”  United States Ex Rel Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1520 (9th Cir. 1995).  It therefore stands reason that if no member of the public requests a particular document available by foyer, there can be no public disclosure.

The Schumer court that I recently cited distinguished public disclosures from “the release of information within a private sphere” stating that under a “practical, common sense interpretation. . . information that was disclosed in private has not been publically disclosed.”  63 F.3d at 1518; See also Myer, 565 F.3d at 1200 (recognizing information disclosed in private is not a public disclosure under the False Claims Act).

In the case Seal One v. Seal A, 255 F.3d 1154, 1161-62 (9th Cir. 2001), the Ninth Circuit Court of Appeals employed the Schumer court’s reasoning to hold that information was publically disclosed because the government disclosed it to an “outsider to the [investigation] with a ‘significant incentive’ and no discentive to use the allegations” to his own advantage.  Thus, we can take from case law that there is no public disclosure when private individuals might discuss alleged wrongdoing.  It is likewise not a public disclosure if there is information available through a foyer request but no information has actually been received.

It finally must be reiterated that if there is a document that is a public disclosure within the meaning of the False Claims Act, the public disclosure must contain enough information to enable the government to pursue an investigation against the defendant.  See United States v. Alcan Electric and Engineering, Inc., 197 F.3d 1014, 1019 (9th Cir. 1999).

If you have any questions concerning whether or not you have a claim under the False Claims Act but fear there has been a public disclosure please contact us as soon as possible for a free and confidential case evaluation.

THE SCOPE OF FRAUD

Amazingly, some estimates have suggested that approximately 10% of the entire annual United States budget is lost to companies or individuals who are defrauding the government. The United States Federal budget for 2010 was $3.456 billion, meaning around $345.6 million was wrongfully wasted on fraud.

The entities defrauding the government do so in a variety of ways: Medicare or Medicaid fraud whereby they bill the government for services which they never provided or overbill for services that were provided; SEC Trading; Tax Fraud; TARP Fraud; Military/Defense contract fraud; Pharmaceutical Manufacturing;contract fraud involving any number of large government spending programs; or other types public benefit fraud.

HELPING THE PUBLIC.

As a whistleblower attorney, we are interested in speaking with persons willing to make known the truth about company practices and are willing to file a qui tam or whistleblower action. One area in particular we are interested in discussing are lawsuits involving medical device companies where the company is alleged to have overcharged, engaged in kickback programs, and the like. We will nevertheless investigate claims in a variety of areas.

Workers and persons all across the country witness actions at their work that may be unlawful or even corrupt. Unfortunately, some employees and workers feel that they will be fired, terminated, harrassed or punished if they report an unlawful or corrupt action. These reporters, however, are protected by the law as a Whistleblower and can receive compensation because of the False Claims Act or the Medicaid False Claims Act. If you have reported actions that may be fraudulent, then you should talk to a Whistleblower or qui tam lawyer about your facts.

Whistleblowers help the government to get back billions of dollars each year with the help of the False Claims Act. In fact, fraudulent Medicaid claims are also caught by whistleblowers having the Medicaid False Claims Act on their side. If you report a false claim or fraudulent action to the government, then the government will give you, the whistleblower, a part of the money that gets recovered. This is because of qui tam requirements. Qui Tam means that a person files a lawsuit for the king and also for him or herself. The phrase is qui tam pro domino rege quam pro se ipso in hac parte sequitur, or, “he who sues for the king as well for himself.”

These requirements and lawsuits were made popular during the Civil War when many people were getting away with fraudulent actions against the government. In 1986, the False Claims Act was amended to raise the total compensation given to people who reported fraudulent actions, or whistleblowers. If a whistleblower works with a lawyer then it may be possible for them to get three times the amount the government would get in damages and also get additional compensation for general fines.

TYPES OF CASES

The most common situations that could form the basis of a Qui Tam action include:

• Submitting a false or fraudulent record, bill or statement to the government in order to fraudulently obtain money such as reporting a medical service that was never performed for Medicare or Medicad;
• Conspiring with a third party to submit or present have a false or fraudulent claim to the government;
• Withholding property of the government with the intent to defraud or conceal the property from the government;
• Fraudulently buying property of the government from someone not authorized to sell that property; and
• Making a false statement to fraudulently avoid paying money to the government or to avoid delivering property to the government.

FOR HELP, PLEASE CONTACT US.

We help whistleblowers on a contingency basis, meaning there is no fee charged for our work unless there is a recovery. We also front any and all expenses. No matter where you are located — we will represent you. We will come to you, you will not have to come to us.

Attorneys in our firm and attorneys that we work with on Whistleblower, Qui Tam, False Claims Act cases have represented a host of persons making claims, for violations of federal tax law, Medicare law and more.

For more information, please contact our team of whitsleblower and qui tam attorneys today.

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