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General Schemes vs. Specific Claims
The qui tam provisions of the False Claims Act, which allow private individuals (“relators”) to bring suit on behalf of the federal government and keep a percentage of the proceeds, continue to be some of the most potent weapons in the government's antifraud arsenal. In fiscal year 2013, over three-quarters of the $3.8 billion recovered by the Department of Justice (DOJ) from FCA cases came from cases brought by relators. Over that same period, relators brought 752 new FCA suits.
Congress has telegraphed its belief in the value of whistleblower suits: In recent years, blockbuster legislation, such as the Affordable Care Act and the Dodd-Frank Act, has increased the potential bounties and legal protections available to whistleblowers.
FCA suits present significant challenges to defendants, including potentially massive actual and statutory damages, criminal investigations arising out of civil allegations, exclusion or debarment from government contracts, and the significant reputational harm that comes when a company is accused of fleecing the government. Faced with these risks, FCA defendants have found appropriate shelter in Rule 9(b) of the Federal Rules of Civil Procedure, which requires that a party alleging fraud “state with particularity the circumstances constituting fraud.” Rule 9(b) allows dismissal of a complaint early in the course of a lawsuit, prior to expensive and intrusive discovery, if a defendant can show that the relator has not alleged (and, perhaps, does not possess) sufficient detail as to the alleged fraud against the government.
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