False Claims Act or Just False Claims

October 18, 2019
Whistleblowers in the News? An Interview with Whistleblower Lawyer Jason T. Brown

Almost every day in the news right now we hear a headline story regarding whistleblowers, so this article discusses some perspectives on what’s really actionable under the False Claims Act portion of the whistleblower statute, by speaking with noted whistleblower lawyer Jason T. Brown of the firm Brown, LLC.  Brown, LLC handles qui tam cases, commonly known as whistleblower lawsuits and their firm offers free whistleblower consultations by calling (877) 561-0000.  Mr. Brown formerly served as a Legal Advisor and a Special Agent for the Federal Bureau of Investigation (FBI).

Question: “What’s with all these whistleblowers that I keep hearing in the news on almost every lead-in story?”

Jason T. Brown “Whistleblower is an umbrella term that refers to any person that is blowing the whistle on what they perceive is misconduct.  Blowing the whistle simply means reporting the misconduct and depending on the statute asking for apportion for the recovery that the government enjoys, or damages or other types of injunctive relief due to retaliation.  The whistleblowers that you keep hearing in the news today involve reporting misconduct in the ranks of government and asking for damages and relief for retaliation based on their reporting. No matter what your leanings are,  one would be remiss if they didn’t observe there’s a political element to the whistleblower stories in the press.  By and large the whistleblowers matters that most whistleblower law firms handle involve protecting the taxpayer by putting an end to fraud against the government.”

Question: “Could you tell us more about how someone can help put an end to fraud against the government?”

Jason T. Brown: “Sure, thanks to a law called the False Claims Act, individuals who know about the government being defrauded can use the powerful mechanisms in that statute to file a qui tam whistleblower lawsuit in a very special way.  It’s unlike anything else, where you actually file the case under seal meaning the defendants don’t even learn about it most likely for many, many years while the government decides what it wants to do.”

Question: “Can you give us some type of example about the types of fraud people can blow the whistle on in the False Claims Act?

Jason T. Brown “Fraud against the government is economic fraud that can come in a variety of ways.  The biggest culprit is often Medicare Fraud or Medicaid Fraud, which are government programs, but it also could be defense contractor fraud or a variety of other programs in which the government has a hand in using taxpayer money to fund.  Medicare Fraud could be overbilling, upcoding, hitting the government up repeatedly for services not rendered.  Also, a big no-no that the government looks out for is kickbacks.”

Question: “Why are kickbacks considered a false claim?”

Jason T. Brown “Some of the largest whistleblower settlements involve kickbacks and generally pharmaceutical whistleblowers.  The kickbacks are payments for patients or to promote goods and its generally thought that if one has additional incentives to provide medical care that are under the radar, then their impartiality could be compromised and dictating patient care based on these under the radar payments rather than objective criteria is prohibited.  For example, let’s say a pharmaceutical company develops a brand new product that is FDA approved to treat acne, but a side effect of the product is that it grows hair and the pharmaceutical company gives each doctor a little something something everytime they prescribe their new product there may be a few violations there.  First, if the product is approved for acne but promoted for hair loss and people are using it for hair loss, then the taxpayer shouldn’t be footing the bill to pay for a product for a purpose that hasn’t been approved.  Also, since the physician is receiving money for their prescriptions then can their judgment be truly trusted that they are doing what’s best for the patient in terms of the prescription or are they doing what’s best for their pockets.  Anyone has to admit even if it doesn’t alter medical judgment, it certainly clouds it to the point where the conduct is tainting.  Of course, for even this type of very actionable whistleblower claim to be viable, there must be government money involved like Medicare or Medicaid.”

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Question: “You keep emphasizing Medicare Fraud and Medicaid Fraud, but you don’t seem to mention defrauding private insurance, why not?”

Jason T. Brown: “The Federal False Claims Act only deals with government money, so Medicare Fraud is addressed, Medicaid Fraud, is addressed since it flows through the states and the feds, but private insurance is generally not included with some exceptions.  If it’s a private insurance Advantage plan that has government money it may be actionable.  Also, states like California and Illinois have mechanisms to address private insurance fraud, but they are very complicated to work through, especially in Illinois where the defrauded private insurance company doesn’t always help to end the fraud against itself, but that’s a topic for another day.”

Question: “Will a whistleblower’s identity be known or can a whistleblower stay anonymous?”

Jason T. Brown: “Although a False Claims Act is filed under seal where the defendant doesn’t learn about the identity of the whistleblower for a considerable period of time at some point in most jurisdictions the identity will be revealed when it becomes unsealed.  Some jurisdictions close it out under seal and the Defendant never finds out, but don’t ever count on that.  Also, some people try to file a John Doe whistleblower complaint or Jane Doe it or use a corporation, but we strongly disfavor that approach.  With the SEC whistleblower programs there’s a mechanism to stay anonymous from start to finish if you use an SEC Whistleblower lawyer.”

Question: “What’s in it for the whistleblower?”

Jason T. Brown: “Whistleblowers are amazingly courageous people who put it all on the line to do the right thing.  In addition to the honor on cutting down taxpayer fraud and holding bad actors accountable for their conduct, the statutes provide for some meaningful whistleblower awards.  Under the False Claims Act itself the whistleblower can potentially receive up to 30% of what the government recovers and when you consider the billions of dollars recovered each year, there’s hundreds of millions of dollars of whistleblower awards that potentially a case can trigger.  Realistically, the government whistleblower awards trend around 20% of what the government recovers if they intervene, more if they don’t.  But it’s a tradeoff, since the average value of an intervened case is significantly higher.”

Question: “Who should a whistleblower call first if they have a case?”

Jason T. Brown: “Well, if the whistleblower wants someone if their corner from the beginning, they should contact a whistleblower law firm that dedicates a portion of its practice to qui tam law.  Oftentimes, well intentioned people come to us after they’ve already blown the whistle to the feds, and they’ll do a great job trying to stop the fraud, but there’s no mechanism under the False Claims Act to pay the whistleblower if they’ve exclusively taken that route.  If you’re a whistleblower and need a free, confidential consultation about your rights, you can always call our whistleblower law firm at (877) 561-0000 to discuss your options.”