As previously discussed on this blog, /files/116785-109034/Doc__718_Statement_of_Interest.pdf”>filed its statement of interest in support of the relator in Allison Engine.
More battles are on the horizon–among the most interesting will be the battle concerning retention of overpayments. More on that to follow.
The First Shots in the Battle Over the Retroactivity Provisions of the New False Claims Act
This sure explains a few things….
Having followed Maryland’s battle to enact a Maryland False Claims Act, I can’t help but point out this article from the Washington Post.
It seems former Maryland Republican Party Chairman John Kane has been nailed under the federal False Claims Act. The allegations are that Kane’s company, and its subsidiaries (including Office Movers, Inc. and Office Installers, Inc.) fed exclusively off of federal and state government contracts, but failed to pay their employees the wages required under federal law.
Despite the failure to pay employees the wages required by law, Kane and his companies repeatedly certified that they were paying the required wages to their employees. In fact, they would not have obtained most of these contracts if they had told the truth about their compensation practices.
Here is yet another wake-up call for Maryland to pass a Maryland False Claims Act–Kane and his companies also obtained more than $2 million worth of Maryland state government contracts, and no doubt they committed the same violations of the law with regards to the state contracts. Yet Maryland will not recoup even a single dollar of the state money, because there is no Maryland False Claims Act.
What a shame, on many different levels.
Introducing the New and Improved Federal False Claims Act!
As I mentioned a week or two ago, the Federal False Claims Act has been updated and improved by the Fraud Enforcement and Recovery Act of 2009.
While the amendments to the FCA fall short of those proposed in the still-pending False Claims Correction Act of 2009, the amendments are important and were needed.
Top qui tam defense lawyer Jack Boese has produced a red-lined version of the new Federal False Claims Act, which I am sharing Mixx Delicious Digg Facebook Twitter
THE FEDERAL FALSE CLAIMS ACT IS REVAMPED FOR THE TWENTY-FIRST CENTURY!!!!
In 1986, with the budgetary strains caused by the cold-war, and with fraudsters draining the U.S. Treasury with impunity, Congress acted by revitalizing the False Claims Act.
Today, Congress once again strengthened the False Claims Act, and brought that Act into the twenty-first century with passage of the Fraud Enforcement & Recovery Act of 2009. Passage of the Act was a beautiful example of bipartisan cooperation and civility, I should add!
The Fraud Enforcement and Recovery Act of 2009 is rumored to be on its way to President Obama, who has promised to quickly sign this bipartisan legislation. In a nutshell, the Fraud Enforcement and Recovery Act of 2009 removes many of the judicially created limitations and qualifications to the False Claims Act.
This much-needed legislation will modernize the Act, allowing the False Claims Act to reach modern-day fraud schemes. It will also remove many of the impediments to the Government’s investigative powers, strengthen anti-retaliation protections, and clarify many of the procedural questions that have derailed qui tam actions in recent years.
This is a giant first step forward for our country’s fraud-fighting efforts. The bipartisan support for this legislation demonstrates, once again, that when it comes to fighting fraud, politics takes a back seat to doing the right thing. Now that Congress has plugged the False Claims Act liability loopholes, we look forward to Congress addressing the rest of the problems identified in the False Claims Act Corrections Act of 2009.
No question about it, this is an historic day–more precisely, tomorrow will be the historic day, if the President signs the Act into law tomorrow. As I point out in my Practice Commentary on the False Claims Act (LexisNexis, 2009) changes to the Federal False Claims Act always accompany major changes in American society, and tomorrow is no different.
State Qui Tam Legislative Updates
Sadly, as the last of the state legislative sessions wind down this month, it appears that we do have a single new state False Claims Act to report. Kansas appears to have passed a non-qui tam state statute, which can only be enforced by that state’s OAG.
There is a glimmer of hope from Minnesota, however, as both houses of the MN state legislature have apparently passed slightly different versions of a “true” FCA–that is, one with qui tam provisions which allow a private individual to file suit in the name of the state to recover treble damages, civil penalties, and attorney’s fees and costs for fraud on the state.
Important New Opinion from the U.S. District Court for the Eastern District of Virginia Addresses the Seal Requirements of the Federal False Claims Act
An important new opinion issued today by the U.S. District Court for the Eastern District of Virginia (Alexandria Division) discusses the mandatory disclosure and seal requirements of the Federal False Claims Act. The opinion can be found on Westlaw as United States ex rel. Ubl v. IIF Data Solutions, et al., 2009 WL 1254704 (E.D.Va.) or by clicking I posted on the topic of whether the provisions of Va. Code 8.01-216.5 apply to the Virginia Attorney General’s Office. In other words, would the OAG need to file a self-initiated VFATA complaint under seal. Judge O’Grady’s opinion provides further support for my position.
The specific issue in the May 5 opinion is an amended complaint filed by the relator, and defendants’ motion to dismiss on the grounds that relator did not comply with the seal requirements of the statute.
Fools–or in this case, the Government Accountability Project, OMB Watch, and the ACLU–Rush In Where Angels Fear to Tread
A lawsuit currently pending in the U.S. District Court for the Eastern District of Virginia seeks to have most the Federal False Claims Act declared unconstitutional. The previously addressed the necessity of the seal in qui tam litigation, and the numerous interests served by requiring qui tam relators to file their cases under seal. In addition to the practical reasons, there are a number of very sound legal reasons why the complaint should be dismissed, and I am sure DOJ’s brief will state them very well.
A number of amicus briefs are expected as well–stay tuned for more.