From contacting an attorney to waiting for the case to be resolved, whistleblowing is a long and difficult road. This is why experienced qui tam lawyers tend to only take on cases with a strong chance of success.
While there’s no guarantee that any qui tam case will lead to a favorable settlement or judgment, here are 5 factors that play a significant role in whether qui tam cases are successfully resolved.
To file a strong qui tam case, whistleblowers need to have compelling evidence that there have been fraudulent billings to government programs.
In healthcare, this means that collecting evidence showing fraudulent billing to private insurance companies is not sufficient. False claims submitted to Medicare, Medicaid, or TRICARE, on the other hand, could qualify the whistleblower for a qui tam lawsuit.
One of the common defenses fraudulent corporations use to suppress whistleblower lawsuits is that the allegations lack particularity or specificity. In other words, the evidence presented does not demonstrate that false claims have actually been submitted, or it doesn’t provide sufficient detail about the circumstances of the fraud.
If a whistleblower is unable to produce individual false claims, they must at the very least produce evidence that the fraudulent company had a deliberate, documented scheme to defraud the government. Still, certain courts may not rule in favor of a lawsuit that merely demonstrates a scheme to defraud the government without concrete false claims submissions.
Evidence may take the form of invoices, internal emails, meeting notes, or other documentation that demonstrates both intent to defraud and actual instances of fraud.
There are many reasons that the government declines to intervene in qui tam cases; it’s not always about a lack of evidence. Investigations of whistleblower claims can take years, so allegations that demonstrate a larger impact on the government and taxpayers tend to have a better chance.
For both whistleblowers and their attorneys, considering the bigger picture of the fraud is essential. Beyond what has occurred at one fraudulent company, what do those allegations reveal about patterns of misconduct in that industry as a whole? How does the fraud negatively impact the government and taxpayers? Are there any other victims of the fraud, such as patients?
All false claims submissions should be reported, but cases that reveal institutionalized abuse of taxpayer funding may have a better shot at reaching a favorable settlement or judgment for the government and the qui tam relator.
Timing is critical in whistleblower cases, but so is thoroughness. A complaint that is poorly researched and hastily thrown together serves no one, especially not the whistleblower.
This is why The Whistleblower Attorneys employ former FBI investigators to guide potential clients through the initial stages of the process. Before we proceed with a filing, it’s important for us to have a detailed understanding of the allegations.
This includes helping the whistleblower determine the estimated amount of false claims submissions to government programs, which regulations apply to the misconduct they’ve witnessed, and which qui tam laws are applicable in their jurisdiction.
We meticulously review any documents or records the whistleblower has, including any confidentiality agreements their employer may have asked them to sign. If they do not have sufficient evidence, we help them assess whether they can access more, and if so, how to do so safely.
We also help them write down the story of the fraud they witnessed in extensive detail, so that when we prepare the disclosure statement to notify the government of the pending lawsuit, it is accurate, comprehensive, and compelling. This can help cut down on the amount of follow-up the government has to do to obtain details of the case.
Investigations take years, and there may be long periods of inactivity where no new information is available about the status of the case. Government investigators have a lot on their plate, however, so it’s up to the whistleblower’s legal team to keep in contact about any updates that do arise.
After the whistleblower’s government interview, the relator’s role may be mostly over–but their attorneys’ role is not. In some cases, the company accused of fraud may attempt to resolve the allegations quietly, without the involvement of the whistleblower’s attorneys.
Qui tam attorneys need to proactively stay informed about the case and how it evolves throughout the investigative process. Otherwise, it’s all too easy for the defense counsel of a powerful corporation to prevail, simply because they were more persistent.
Qui tam litigation does not yield easy or immediate results; it is undoubtedly a long game. For both whistleblowers and those who represent them, clear and honest communication is a necessity.
People who have witnessed fraud are understandably distressed, and many come forward because they simply cannot live with themselves if they don’t. The path ahead of them will be challenging, so qui attorneys need to be transparent about the realities of being a whistleblower.
Confidentiality is one of the toughest components in this type of litigation. Even when a potential client is simply considering whether to file a case, we strongly encourage them to limit their discussions about the fraud they’ve witnessed.
Breaching confidentiality recommendations before filing can cause a whistleblower to lose first-to-file status, which can be devastating. After filing, they will not be able to discuss the details of the case, even with those closest to them.
Preparing clients for the government interview, including its aftermath, is another important part of qui tam attorneys’ work. Many whistleblowers find the government interview process cathartic, and may feel that the process is over or nearly over.
However, there is quite a bit more waiting before they will see a resolution. Attorneys should be prepared to be in consistent contact with the whistleblower, who may want updates, information, or simply validation that they did the right thing.
Without that communication, the whistleblower may struggle to maintain confidentiality, which could potentially compromise the results of the case.
Building strong cases
Whistleblower cases can be lengthy and complex, but when they are successful they lead to recovered taxpayer dollars, justice for the government, and vindication for the whistleblower.