The False Claims Act: It’s More Than Just Healthcare

By: Scott R. Grubman Chilivis, Cochran, Larkins & Bever

Scott Grubman is a entities and individuals in various Partner at Chilivis other industries, including Cochran Larkins & technology and software Bever in Atlanta, where companies, and defense and he focuses his practice highway contractors. Even on government professional cyclist Lance investigations, False Armstrong is a defendant in a Claims Act litigation, and other civil and pending FCA qui tam brought by criminal litigation matters with an his former teammate Floyd Landis, emphasis on healthcare fraud and based on allegations that abuse defense. Scott previously Armstrong used performance- served as an Assistant U.S. Attorney enhancing drugs while accepting and DOJ Trial Attorney. He can be sponsorship money from the U.S. reached at [email protected]. Postal Service.4 I. Introduction Because the FCA can be In the fiscal year ending used as a tool against any person September 30, 2014, the United or entity that receives money from States Department of Justice the federal government, it is (“DOJ”) collected $5.69 billion in important that all defense settlements and judgments under lawyers—not just healthcare the federal False Claims Act lawyers—have a general (“FCA”), the majority of which was understanding of the FCA, the result of actions filed under the including what type of conduct FCA’s whistleblower (or qui tam) could lead to FCA liability and what to do when a client becomes provisions.1 Despite popular belief that FCA investigations and the target of an FCA investigation. litigation are confined to the II. The FCA Today: A Brief healthcare industry, less than half Overview of the DOJ’s total FCA recoveries The current version of the in 2014 were obtained in FCA provides for the imposition of healthcare matters."2 per-claim penalties of between The largest portion of FCA $5,500 and $11,000, as well as recoveries in 2014—$3.1 billion— treble damages, against any person were in housing and mortgage who: fraud matters.3 Another nearly • Knowingly presents, or $300 million came from causes to be presented, a settlements and judgments against

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false or fraudulent claim for • Conspires to do any of the payment or approval;5 foregoing.11 • Knowingly makes, uses, or Although the FCA is often causes to be made or used, a described as a “fraud” statute, the false record or statement FCA expressly provides that no material to a false or proof of specific intent to defraud is fraudulent claim;6 required to prove an FCA violation.12 Instead, an FCA • Has possession, custody, or defendant must only act control of property or money “knowingly,” which the FCA used, or to be used, by the defines as acting with actual government and knowingly knowledge, reckless disregard, or delivers, or causes to be deliberate ignorance.13 delivered, less than all of that money or property;7 An FCA action may either be brought directly by the DOJ or by a • Makes or delivers a private person, known as a document certifying the “relator.”14 A relator in a qui tam receipt of property used, or action under the FCA is typically to be used, by the entitled to an award equal to 15% government without and 25% of the government’s completely knowing that the recovery if the government information on the receipt is proceeds with (or “intervenes in”) true;8 the action, and between 25% and • Knowingly buys, or receives 30% if the government declines to as a pledge of an obligation intervene.15 The FCA also provides or debt, public property from for relief from retaliation against an officer or employee of the an FCA relator including government, or a member of reinstatement, two-times back pay the Armed Forces, who plus interest, compensation for any lawfully may not sell or special damages, costs and pledge property;9 attorneys’ fees.16 • Knowingly makes, uses, or The FCA has a broad venue causes to be made or used, a provision, permitting an FCA false record or statement action to be brought in any judicial material to an obligation to district in which the defendant, or pay or transmit money to the in the case of multiple defendants, government, or knowingly any one defendant, can be found, conceals or knowingly and resides, transacts business, or in improperly avoids or which the prohibited conduct in decreases an obligation to question occurred.17 The FCA’s pay or transmit money or statute of limitations is the later of property to the six years from the date of the government;10 or violation or three years from the

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date the material facts are known Chinch and the Commonwealth.”23 or reasonably should be known to a According to Coke, the professional responsible federal government informers were “a class of unruly official, not to exceed ten years men.”24 18 from the date of the violation. In colonial America, several colonial legislatures passed laws containing qui tam provisions. For III. History of Qui Tam example, a 1686 law from the Provisions and the FCA Colony of Massachusetts imposed A. Qui Tam Provisions penalties for fraud in the sale of Under English and bread and provided that the Colonial Law inspector who discovered the fraud The term “qui tam” is short would be entitled to one-third of 25 for “qui tam pro domino rege quam the recovery. The Colony of New pro se ispo in hac parte sequituri,” York passed legislation in 1715 which means “who pursues this which imposed penalties for taking action on our Lord the King’s oysters out of season and provided behalf as well as his own.”19 that half of the recovery go to the 26 According to the Congressional informer. Qui tam statutes were Research Service, the earliest also passed in colonial Connecticut 27 known example of a qui tam and Virginia. provision was in 695 when King B. Birth of the FCA Wihtred of Kent issued a The FCA was originally declaration which stated that “[i]f a enacted in 1863 as a result of freeman works during the contractors selling subpar goods to forbidden time [i.e., the Sabbath], the Union Army during the Civil he shall forfeit his healsfang, and War.28 In the beginning, “the law the man who informs against him was used to recover monies from shall have half the fine, and [the unscrupulous contractors who sold profits arising] from the labour.”20 the Union Army decrepit horses By the sixteenth century, statutes and mules in ill health, faulty rifles containing qui tam provisions were and ammunitions, and rancid common under English law.21 The rations and provisions.29 The proliferation of qui tam provisions original FCA was often referred to in England led to the rise of as the “Lincoln Law”, nicknamed professional informers (often after President Lincoln, who once referred to today as “serial said: “Worse than traitors in arms relators”), who developed an are the men who pretend loyalty to unsavory reputation as “varlets.”22 the flag, feast and fatten on the Sir Edward Coke, in his Institutes misfortunes of the nation while of Laws of England, described patriotic blood is crimsoning the these professional informers as plains of the south and their “viperous Vermin’ preying upon the countrymen are moldering in the

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dust.”30 Originally, relators were hammers being sold to the federal entitled to half of the government’s government, including the recovery.31 Department of Defense.36 According to Senator Grassley, his 1986 C. The FCA’s Near amendments “restored the teeth Death Experience and breathed new life into a law During World War II, that was designed to do nothing Attorney General Francis Biddle but to protect all American asked Congress to repeal the qui taxpayers.”37 Among the 1986 tam provisions of the FCA, amendments were provisions explaining that qui tam actions protecting FCA relators from had “become mere parasitical retaliation, increasing FCA actions, occasionally brought only damages and penalties, adding a after law-enforcement offices have “reverse false claims” provision investigated and prosecuted (discussed more below), increasing persons guilty of a violation of law the relator’s award, eliminating the and solely because of the hope of a government knowledge bar, and large reward.”32 Although both expanding the statute of Houses of Congress actually voted limitations.38 Since Senator to repeal the FCA’s qui tam Grassley’s 1986 amendments, the provisions, Congress ultimately federal government has recovered softened its stance and instead over $30 billion under the FCA.39 passed legislation that kept—but E. 2009 Amendments severely curtailed—the FCA’s qui tam provisions.33 Among the major The next significant date in amendments were the “government the life of the FCA was 2009, when knowledge bar”—precluding qui the Fraud Enforcement and tam suits based on information Recovery Act (“FERA”) was signed already in the government’s into law. FERA contained several possession—and a reduction of the important amendments to the relator’s share from 50% to no FCA, including clarifying that a more than 25% (or 10% if the false claim need not be submitted government litigated the case).34 directly to a federal officer or employee, defining materiality to D. The FCA’s Rebirth encompass false statements having In 1986, President Reagan a “natural tendency” to influence signed into law several major payment, expansion of the amendments to the FCA, which conspiracy provision to apply to all were crafted by Iowa Senator substantive FCA violations, and – Chuck Grassley.35 Senator Grassley perhaps most significantly— drafted the amendments in expansion of the “reverse false response to instances of fraud, claims” provision to expand FCA waste, and abuse, including reports liability for knowingly and of $900 toilet seats and $500 improperly avoiding or decreasing

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an obligation to pay or transmit complaint remains under seal for money or property to the at least 60 days while the government, including the government investigates, and is retention of an overpayment.40 not served on the defendant until These amendments reinforced the court orders.44 Senator Grassley’s 1986 Once the relator serves the amendments and solidified the government with a copy of the FCA as the government’s fraud- complaint and a written disclosure fighting statute of choice. statement, the clock begins for the F. The Affordable government to investigate and Care Act and determine whether it wants to the FCA proceed with and conduct (“intervene in”) the action, or In 2010, President Obama decline to take over the action, in signed into law the Patient which case the relator has the right Protection and Affordable Care Act. to conduct the action unless the Although better known for its government moves to dismiss.45 provisions regarding access to Although the FCA gives the health insurance, the Affordable government only 60 days to Care Act also contained a number investigate and make its of provisions amending, or intervention decision, the otherwise affecting, the FCA. government almost always avails Among these provisions were itself of its statutory right to ask amendments to the FCA’s public the court for extensions of that disclosure bar and original source deadline.46 Although DOJ attorneys rule (discussed in more detail are encouraged to make an below).41 intervention decision in less than a IV. The Nuts and Bolts of an year, the average length of an FCA FCA Investigation investigation was around two years A. The Seal Period in in 2011 (the last year this statistic Qui Tam Actions is publicly available), and FCA investigations often last Although the DOJ can considerably longer.47 initiate an FCA investigation on its own accord (these investigations In recent years, however, are often triggered by a referral federal district court judges have from a federal agency or a civilian begun to express frustration with tip), most FCA investigations begin the amount of time FCA with the filing of a qui tarn investigations are taking. In 2012, for example, Judge Harry Mattice complaint by a relator.42 Qui tam complaints are brought in the of the Eastern District of name of the government and are Tennessee issued a scathing filed in federal district court in opinion in which he stated that the government in that case had camera and under seal.43 The

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stretched the FCA’s “under seal” a CID to any person who “may be requirement “to its breaking in possession, custody, or control of point.”48 Judge Mattice stated that any documentary material or the government had used the seal information relevant to” an FCA period as a means to conduct investigation.51 Prior to 2009, only “unchecked” and “one-sided” the Attorney General had the discovery, a practice that he noted authority to issue a CID, obviously was neither contemplated by limiting the number of CIDs that Congress nor authorized by the were issued every year.52 The 2009 FCA.49 FERA amendments, however, allowed the Attorney General to B. Document delegate this authority, and the Production DOJ did just that in 2010, In most FCA investigations, delegating the FCA’s CID authority the defendant’s first indication that to each United States Attorney.53 the government is conducting such Similar to a subpoena, a CID an investigation is when it receives must contain a sufficient a request for documents. Although description of the documents it such requests sometimes come in seeks and a deadline for production the form of an informal request of those documents, which cannot such as a letter from the be less than twenty days after the Department of Justice or the local date of service.54 A CID can be U.S. Attorney’s Office, most of the served anywhere in the country,55 time the request is in the form of and the DOJ can seek to enforce a an inspector general (“IG”) CID in the district court in the subpoena or Civil Investigative district in which the recipient is Demand (“CID”). The Inspector located.56 Although both IG General Act of 1978 gives the subpoenas and CIDs contain a Offices of Inspector General of the production deadline, as with various federal agencies the document requests under the authority to issue subpoenas for Federal Rules of Civil Procedure, in documents.50 So, for example, most FCA investigations, the where the Department of Defense recipient can negotiate an (“DoD”) Office of Inspector General extension of the production is investigating a potential FCA deadline, a “rolling” production of violation affecting the DoD, it may documents, or a limitation of the issue a DoD IG subpoena for documents requested. documents. C. Witness Interviews In addition to an IG subpoena, an FCA defendant—or In almost every FCA any other person who might have investigation, the government also custody of relevant documents— conducts witness interviews, both might receive a CID for documents. formally and informally. An The FCA permits the DOJ to issue informal interview is typically

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accomplished by a federal law transcript and make any enforcement agent, DOJ appropriate changes.61 investigator, DOJ attorney, or a D. Other Investigative combination thereof, either calling Tools and the witness or showing up at the Techniques witness’ home or place of business unannounced. Frequently, such Other tools and techniques informal interviews will be of that the government uses in FCA former employees of the defendant investigations include CIDs for or other individuals with answers to written potentially relevant information. interrogatories,62 the use of undercover agents and hidden The DOJ also often requests recording devices, and various an interview of the defendant or— types of data analysis. As in the case of an entity—a current technology advances and fraud employee of the defendant. schemes become more Although the government should sophisticated, so do the tools the typically not contact a witness once government uses to investigate the government lawyer knows that allegations of fraud or other the witness is represented by wrongdoing. counsel,57 or knows that the witness is employed by an V. Recent FCA Activity organization that is represented by Outside of the counsel,58 the government may Healthcare Industry request an informal interview of a Although the majority of current employee through the FCA activity involves healthcare organization’s counsel, or by providers, as discussed, the FCA is serving a CID for testimony. Like a potentially implicated any time a CID for documents, a CID for person or entity receives federal testimony can be served money or property. Recent nationwide on anyone with examples of FCA investigations 59 potentially relevant information. and resolutions outside of the Although a CID for testimony is healthcare industry include: not subject to Federal Rule of Civil Procedure 30, it is very similar to a A. Mortgage/Banking deposition taken under that rule. Fraud The testifying witness has the In 2012, the DOJ (led by right to the presence of an attorney U.S. Attorney for the Eastern who may advise the witness and District of New York Loretta object when appropriate, and the Lynch) announced a $1 billion FCA testimony is under oath and taken settlement with Bank of America before a court reporter.60 Also (“BoA”) and Countrywide Financial similar to a deposition conducted Corporation (a BoA subsidiary) to under the Federal Rules, the resolve claims that BoA and witness has the right to read the

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Countrywide violated the FCA by government for work performed by knowingly making loans insured by Lockheed employees who lacked the Federal Housing job qualifications.67 According to Administration (“FHA”) to the DOJ’s press release, Lockheed unqualified homebuyers.63 violated the terms of their According to the DOJ press release, contracts with the DoD by using the FHA incurred hundreds of under-qualified employees who millions of dollars in damages as a were billed to the government at result of BoA and Countrywide’s the rates of more qualified submission of inflated appraisals to employees.68 64 the FHA. In October 2014, a ship On December 31, 2014, the repair company paid $1 million to U.S. Attorney’s Office for the resolve allegations that it violated Southern District of New York the FCA by establishing a “front announced a similar settlement company” in order to be awarded with Golden First Mortgage Coast Guard contracts that were Company and its owner/President, designated for Service Disabled who paid $36 million and $300,000, Veteran Owned Small Businesses.69 respectively, to resolve allegations That same month, an antenna and that they fraudulently certified radio system company paid $10 compliance with FHA regulations million to resolve an FCA case and violated the FCA by alleging that it misrepresented originating and underwriting FHA certain facts during contract loans that should not have been negotiations with the Army.70 In approved.65 Earlier this year, March 2014, a California company MetLife Home Loans agreed to pay paid $500,000 to resolve nearly $125 million to resolve an allegations that it violated the FCA FCA case with similar allegations.66 by falsely certifying that products it sold to the U.S. Army were B. Defense and Other manufactured in the United States Government as required by the Buy American Contractor Fraud Act.71 As discussed, the FCA was Government contractors signed into law during the Civil outside of the defense industry War to fight defense contractor have also found themselves on the fraud against the Union Army. The wrong side of FCA investigations. government continues to use the Late last year, for example, Iron FCA to investigate allegations of Mountain paid over $44 million to fraud by defense contractors. For settle allegations that it example, in December 2014, overcharged federal agencies for Lockheed Martin agreed to pay record storage services under $27.5 million to resolve allegations General Services Administration that it violated the FCA by (“GSA”) contracts.72 In May 2014, knowingly overbilling the

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two highway contracting performed at a federal Superfund companies—one based in site.76 In 2012, the DOJ announced Georgia—paid $400,000 to settle a $47 million FCA settlement with allegations of false certification Harbert Corporation and other related to the Department of companies resulting from Transportation’s Disadvantaged allegations that they violated the Business Enterprise (“DBE”) FCA by rigging bids on government program.73 contracts.77 C. Evasion of Customs E. Other Non- Duties Healthcare-Related The government has used FCA Settlements the FCA on a number of recent There have been dozens of occasions to investigate companies other non-healthcare-related FCA for improperly evading customs settlements in the last several duties. In February 2015, for years. In April 2015, a Florida example, the DOJ collected over $3 company and its owner agreed to million from three companies pay $250,000 plus a percentage of accused of evading customs duties future revenues to resolve on imports of aluminum extrusions allegations that they falsely from China by misrepresenting the certified that an office was located country of origin of the imported in a Small Business products.74 In 2014, an importer of Administration-designated computer cable assemblies paid Historically Underutilized over $1 million to settle an FCA Business Zone by setting up an investigation related to allegations unmanned “virtual office” in that that it submitted deflated invoices location.78 The previous month, in order to underpay custom Fireman’s Fund Insurance duties.75 Company paid $44 million to settle D. Bid-Rigging and FCA allegations that it knowingly issued federally reinsured crop Kickbacks insurance policies that were Engaging in anticompetitive ineligible for federal reinsurance.79 behavior such as bid-rigging and The same month, a panel of the paying kickbacks in relation to Eleventh Circuit partially revived government contracts can also lead an FCA qui tam against Kaplan to FCA liability. In late 2014, for University for allegedly violating example, a New York-based the Higher Education Act’s ban on environmental remediation firm universities paying bonuses to paid nearly $3 million to resolve an recruiters based on the number of FCA suit alleging that it accepted students enrolled.80 kickbacks and rigged bids, and passed inflated charges on to the EPA in connection with work

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VI. FCA Litigation and alleged fraud,” specifically “the Common Defenses details of the defendant’s allegedly fraudulent acts, when they A. Government occurred, and who engaged in Intervention them.”85 Although the vast majority C. Public Disclosure of FCA investigations result in a resolution without the necessity of The public disclosure litigation—largely because of the requires a court to dismiss an FCA potentially devastating qui tam action if “substantially the consequences of losing, including same allegations or transactions” treble damages, per-claim alleged in the action were publicly penalties, attorneys’ fees, and the disclosed in a federal criminal, potential for program civil, or administrative hearing exclusion/debarment—if the which the government or its agent government, the relator, and the is a party; in a congressional, defendant cannot reach a Government Accountability Office, settlement prior to the intervention or other federal report, hearing, deadline,81 the government must audit, or investigation; or from the either decide to proceed with the news media.86 Courts have applied case in district court, or decline to the public disclosure bar broadly. do so and allow the relator to move For example, the Supreme Court forward with the case on its has held that the word “report” in behalf.82 If the government does the public disclosure bar means intervene in the action, it may file “something that gives information” its own complaint or amend the or a “notification.”87 The Eleventh relator’s qui tam complaint.83 Circuit has held that a publicly available website qualifies as B. Common Defenses “news media” for purposes of the Rule 9(b): In the vast public disclosure bar.88 majority of FCA cases that result Importantly, the public in litigation, the defendant files a disclosure bar does not apply to motion to dismiss for failure to actions brought directly by the allege fraud with particularity DOJ, and the government can veto under Federal Rule of Civil the use of the public disclosure bar Procedure 9(b). Federal courts in in a qui tam action.89 Finally, the all circuits require qui tam public disclosure bar does not apply complaints to satisfy Rule 9(b), where the relator is the “original although circuit courts disagree on source” of the information, how to apply Rule 9(b) to FCA meaning that the relator either complaints.84 The Eleventh Circuit voluntarily disclosed the has held that an FCA complaint information to the government must plead “facts as to time, place prior to a public disclosure, or has and substance of the defendant’s knowledge that is “independent of

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and materially adds to” the End Notes publicly disclosed information and voluntarily provided the information to the government 1http://www.justice.gov/opa/pr/justice- before filing the action.90 department-recovers-nearly-6-billion- D. First to File false-claims-act-cases-fiscal-year-2014 2 Another defense available to Id. FCA defendants in a qui tam 3 Id. action is the FCA’s first to file bar. 4http://www.justice.gov/opa/pr/united- That bar provides that “[w]hen a states-joins-lawsuit-alleging-lance- person brings a [qui tam action], no armstrong-and-others-caused-submission- person other than the Government false. may intervene or bring a related 5 31 U.S.C. § 3729(a)(1)(A). action based on the facts 6 31 U.S.C. §3729(a)(1)(B). 91 underlying the pending action.” 7 Id. §3729(a)(1)(D). Like the public disclosure bar, the 8 first to file bar applies only to qui Id. § 3729(a)(1)(E). tam actions, not direct government 9 Id. §3729(a)(l)(F). actions.92 10 Id. § 3729(a)(1)(G). VII. Conclusion 11 Id. § 3729(a)(1)(G). The government’s continued 12 Id. § 3729(a)(1)(C). success in collecting billions of 13 Id. § 3729(b)(1)(A). dollars in so-called “fraud” 14 Id. §3730(a), (b). recoveries in industries other than 15 Id. §3730(d)(1), (2). healthcare means that non- healthcare attorneys are now 16 Id. §3732(h) learning what healthcare attorneys 17 Id. §3732(a) have known for quite some time: 18 Id. §3731(b) that the FCA remains, and will 19 Vt. Agency Natural Res.V.United States remain, one of the government’s ex rel. Stevens, 529 U.S. 765, 768 n.1 most powerful tools to go after (2000). those who accept money from the 20 Charles Doyle, Qui Tam: The False government—whether in exchange Claims Act and Related Federal Statutes, for decrepit horses, $900 toilet Congressional Research Service (Aug. 6, seats, or lucrative defense 2009), at p. 2. contracts—without following the 21 Id. myriad of government rules and 22 Beck, The False Claims Act and the regulations. English Eradication of Qui Tam Legislation, 78 North Carolina Law Review 539, 577-78 (2000).

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23 Id. at 578 (quoting Edward Coke, the department-recovers-nearly-6-billion- Third Part of the Institutes of the Laws of faIse-claims-act-cases-fiscal-year-2014. England, at 194). 43 31 U.S.C. § 3730(b). 24 Doyle, supra, at p. 2. 44 Id. 25 Id. at n.14 (citing Colonial Laws of 45 Id. Massachusetts 8 (1686)). 46 Id. 26 Id. (citing 1 Collnial Laws of New York, 1664-1719, 845 (1715)). 47http://www.mainjustice.eom/2011/07/27/l ength-of-fraud-probes-frustrating- 27 Id. congress-judges-and-attorneys/ 28http://www.justice.gov/opa/pr/justice- 48 United States ex rel. Martin v. Life Care department-celebrates-25th- anniversary- Centers of America, Inc., 912 F. Supp. 2d false-claims-act-amendments-1986. 617, 623 (E.D. Tenn. 2012). 29 Id. 49 Id. at 623-24. 30http://www.michbar.org/journal/pdf/pdf4 50 5a U.S.C. App. § 6. articlel590.pdf 51 31 U.S.C. §3733(a)(1). 31 Section 6, Act of March 2, 1863, 12 Stat. at 698. 52 31 U.S.C. §3733(a)(1) (2008). 32 Doyle, supra, at p. 6 (quoting S. Rept. 53 75 Fed. Reg. 14070, 14072 (Final Rule No. 77-1708, at 2; H. Rept. No. 78-263 at March 24, 2010). 2). 54 31 U.S.C. §3733(a)(2)(B),(E). 33 Id. at 6-7. 55 31 U.S.C. §3733(c)(1). 34 Id. at 7. 56 31 U.S.C. §3733(j). 35http://www.okbar.org/members/BarJourn 57 See Model R. Prof. Cond. 4.2. Georgia al/archive2005/Aprarchive05/obj7612f Rule of Professional Conduct 4.2(b) al.aspx expressly makes this rule applicable to 36 Id. attorneys for the state and federal governments. 37 Congressional Record—Senate, Vol. 155, Pt. 4, at 5458 (Feb. 24, 2009). 58 Comment 7 of Model Rule 4.2, supra, states that in the case of a represented 38 Doyle, supra, at pp. 7-8. organization, the Rule prohibits 39http://www.justice.gov/opa/pr/justice- communications with a constituent of the department-celebrates-25th-anniversary- organization who supervises, directs or false-claims-act-amendments-1986. regularly consults with the organization’s lawyer concerning the matter or has 40 Doyle, supra, at p. 8 authority to obligate the organization with 41http://www.greenellp.com/wp- respect to the matter or whose act or content/uploads/2011/04/Michael-Tabb- omission in connection with the matter PPACA-Amendments.pdf. may be imputed to the organization for purposes of civil or criminal liability. 42 In addition to collecting nearly $6 billion Comment 4A to the Georgia Rule contains in FCA recoveries in 2014, the DOJ similar language. Although the Rules reported that over 700 new qui tarn permit a government lawyer to interview complaints were filed last year alone. a former employee of a represented http://www.justice.gov/opa/pr/justice- organization, in Georgia there are

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limitations, including that the information 75http://www.justice.gov/usao- sought must not be privileged, the lawyer ndca/pr/united-states-settles-false-claims- must make full disclosure as to the act-allegations-against-importer. identify of his/her client, and the former 76http://www.justice.gov/opa/pr/sevenson- employee must consent. See Georgia environmentaI-services-inc-agrees-pay- Formal Advisory Opinion No. 94-3. 272-million-settle-claims-alleged-bid- 59 31 U.S.C. § 3733(a)(c). rigging. 60 31 U.S.C. § 3733(h). 77http://www.justice.gov/opa/pr/harbert- companies-agree-pay-47-million-resolve- 61 Id. false-claims-act-allegations. 62 Id. § 3733(a)(1)(B) 78http://www.justice.gov/opa/pr/florida- 63http://www.justice.gov/usao/nye/pr/2012/ company-and-owner-agree-resolve-alleged- 2012feb09.html. false-claims-act-violations-regarding. 64 Id. 79http://www.justice.gov/opa/pr/firemans- fund-insurance-company-pay-44-million- 65http://www.justice.gov/usao/nys/pressrele settle-false-claims-act-allegations. ases/Decemberl4/GoldenFirstSettlem entPR.php. 80 Urquilla-Diaz v. Kaplan University, 780 F.3d 1039 (11th Cir. 2015). 66http://www.justice.gov/opa/pr/metlife- home-loans-llc-successor-metlife-bank-na- 81 The FCA permits the government to pay-1235-million-resolve-alleged-federal. settle the action with the defendant notwithstanding any objections by the 67http://www.justice.gov/opa/pr/defense- relator if the court determines, after a contractor-agrees-pay-275-million-settle- hearing, that the proposed settlement is overbilling-allegations. fair, adequate, and reasonable under all 68 Id. the circumstances. Id. § 3730(c)(2)(B). 69http://www.justice.gov/opa/pr/north- 82 The government can also move to florida-shipyards-pay-l-million-resolve- dismiss the action upon notification to the false-claims-allegations. relator. Id. §3730(c)(2)(A). 70http://www.justice.gov/opa/pr/first-rf- 83 Id. § 3731(c). For statute of limitations corporation-agrees-pay-10-million-resolve- purposes, such complaint relates back to false-claims-act-allegations. the filing date of the original qui tam complaint so long as the government's 71http://www.justice.gov/usao/cac/Pressroo claim arises out of the conduct, m/2014/033a.html. transactions, or occurrences set forth in 72http://www.justice.gov/opa/pr/iron- the original complaint. Id. mountain-companies-pay-445-million- 84 See United States ex rel. Nathan v. settle-alleged-false-billings-storing- Takeda Pharmaceuticals North America, government. Inc., No 12-1349, Supplemental Brief For 73http://www.justice.gov/usao- Petitioner, 2014 WL 975915 (March 12, sc/pr/construction-firms-pay-settle- 2014); United States ex rel. Clausen v. alleged-false-claims-connection-colleton- Laboratory Corp. of America, 290 F.3d county-road/ 1301, 1308-09 (11th Cir. 2002). 74http://www.justice.gov/opa/pr/three- 85 United States ex rel. Cooper v. Blue importers-pay-over-3-million-settle-false- Cross & Blue Shield of Fla., 19 F.3d 562, claims-act-suit-alleging-evaded-customs 567-68 (11th Cir. 1994).

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86 31 U.S.C. § 3730(e)(4)(A). 89 31 U.S.C.§ 3730(e)(4)(A). 87 Schindler Elevator Corp. v. US. ex rel. 90 31 U.S.C.§ 3730(e)(4)(B). Kirk, 131 S. Ct. 1885, 1891 (2011). 91 Id. § 3730(b)(5). 88 United States ex rel. Osheroffv. Humana 92 Id. Inc., 776 F.3d 805, 813 (11th Cir. 2015).

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