Fourth Circuit Clarifies “Protected Activities” With Respect to a FCA Retaliation Claim

In Glynn v. Edo Corp., 710 F.3d 209 (4th Cir. 2013), the Fourth Circuit recently clarified what constitutes “protected activity” under the anti-retaliation provision of the False Claims Act, 31 U.S.C. § 3730 (h)(1).  As background, to prove a FCA retaliation claim, a whistleblower must show, inter alia, that he was engaged in “protected activity” by acting in furtherance of a whistleblower lawsuit.  Courts have historically grappled with the concept of what constitutes “protected activity,” and some courts have identified only a narrow class of conduct, while others have taken a more liberal point of view.  In Glynn, the Fourth Circuit adopted the former approach and held that the Plaintiff had failed to prove that he was retaliated against for engaging in “protected activity” because his evidence failed to “raise a distinct possibility of a viable FCA action” or prove that any false certification was “material.”  The court then affirmed summary judgment in the Defendant employer’s favor.

The relator in Glynn worked as an engineer for Impact Science & Technology (“IST”). IST designs and manufacturers Mobile Multi-Band Jammer systems (“MMBJs”), which are systems that are used to jam the frequencies used to detonate IEDs. Glynn alleged IST terminated him for reporting purportedly fraudulent conduct to the government, specifically that IST was “shipping systems that … were putting our troops in jeopardy” and that IST had failed to implement a quality assurance plan (“QAP”) as contractually required.

The Fourth Circuit rejected the whistleblower’s arguments that he was engaged in “protected activity” and explained that the insignificance of the defect identified by the whistleblower meant that the product still met the Government’s standards; that any false certifications of compliance were not material because the defect was so minor and because the failure to create a QAP was likely just an administrative failure; and that simply “perking” the Government’s ears by initiating an investigation was inadequate to constitute “protected activity.”

Eighth Circuit Rejects Justice Department Efforts to Avoid Paying Relators’ Share on Settlement “Unrelated” to Relators’ Qui Tam Claims

The Justice Department (“DOJ”) recently received a signifcant rebuke from the Eighth Circuit Court of Appeals.  After releasing  Hewlett-Packard Company from further FCA liability in return for a $55 million settlement, the Eighth Circuit Court of Appeals held that DOJ would have to pay a large portion of that settlement to the Relators, which far exceded the limited “share” payment DOJ wanted to make.  The court squarely rejected the government’s myriad arguments on the issue — including that Relators were not entitled to any recovery on certain qui tam allegations because they lacked the particularity required by Rule 9(b).  This ultimately means that DOJ has to pay the Relators $8.8 million, as opposed to the $1.9 million it wanted to pay.

South Carolina Ambulance Company To Pay $800,000 to Resolve False Claims Act Allegations

Williston Rescue Squad Inc. has agreed to pay the United States $800,000 to resolve allegations that it violated the False Claims Act by making false claims for payment to Medicare for ambulance transports, the Justice Department announced today.   Williston, based in Williston, S.C., provides ambulance transport services in the southwestern part of South Carolina.

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$125 million paid to IRS whistleblowers in 2012

The Internal Revenue Service announced Wednesday that it paid out $125 million to whistleblowers in the 2012 fiscal year, an apparent record, up from just $8 million last year.  The boom was driven largely by one man: Bradley Birkenfeld, a former banker at UBS who provided information on the firm’s vast business of helping wealthy Americans hide their assets abroad and received a record $104 million reward for his efforts.

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The United States Intervenes in Qui Tam Case Against Life Care Centers of America

The Department of Justice has filed a complaint-in-intervention in a False Claims Act case filed against Life Care Centers of America.

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Four Takeaways from Sixth Circuit Ruling on False Claims Act Liability

Federal and state governments are clearly “feeling their oats” in the area of False Claims Act (FCA) enforcement. FCA enforcement has never been more lucrative, with recoveries doubling to $9 billionover the last year. A large bulk of that profit has come from settlements, meaning that prosecutors’ theories and tactics face no judicial scrutiny. Big profits + little oversight = aggressive pursuit of increasingly novel FCA claims.

Challenges to government’s FCA theories and positive outcomes are increasingly few and far between, so we will actively assess and promote them whenever they arise. The U.S. Court of Appeals for the Sixth Circuit’s October 5 U.S. ex rel Williams v. Renal Care Group opinion firmly rejected federal efforts to expand key aspects of the FCA and offers some important lessons for FCA targets.

Read More from Forbes here:

Hospitals Warned by U.S. on Medicare Billing Practices

Hospital bills are being audited as the U.S. tries to identify whether new electronic records were used to “game the system” and overcharge the Medicare health program.

Some hospitals may be “cloning” patient records and “upcoding” their bills — charging for higher intensity services than are given — to raise payments from the government, Kathleen Sebelius, secretary of the U.S. Department of Health and Human Services, and Attorney General Eric Holder said in a letter yesterday to five trade associations. Hospitals caught misusing the electronic systems may be prosecuted for fraud or lose Medicare payments, the officials said.

To read more from Bloomberg, click here.

Doctors, other billing Medicare at higher rates

Thousands of doctors and other medical professionals have billed Medicare for increasingly complicated and costly treatments over the past decade, adding $11 billion or more to their fees — and signalling a possible rise in medical billing abuse, according to an investigation by the Center for Public Integrity.

To view the entire Washington Post story, click here.

IRS To Pay Whistleblower $104 Million

WASHINGTON (AP) — First, the government threw Bradley Birkenfeld in prison for helping a former client at UBS AG hide his wealth from the Internal Revenue Service. Now, as part of the same case, the IRS has awarded the former banker $104 million — yes, million — for helping expose the widespread tax evasion scheme by the Swiss banking behemoth.

The dizzyingly abrupt turnabout in Birkenfeld’s life leaves him with the largest government whistleblower award ever to an individual, said Stephen M. Kohn, one of Birkenfeld’s attorneys and executive director of the National Whistleblowers Center. The center is a nonpartisan group that defends employees’ disclosures of wrongdoing and waste.

The size of the award, announced Tuesday by Birkenfeld’s lawyers and confirmed by the IRS, reflects an investigation that resulted in UBS being fined $780 million. It also led to an unprecedented agreement requiring UBS to give the U.S. government the names of 4,700 Americans who held secret overseas accounts and the recovery by the IRS of $5 billion in back taxes and penalties from other taxpayers with overseas accounts under agency amnesty programs, Kohn said.

More broadly, the award is a resounding signal to other financiers with information about tax wrongdoing that the IRS’ program will treat them properly, said Kohn, who in an interview called Birkenfeld “the Babe Ruth of whistleblowers.”

“It’s not about Brad,” Kohn said. “It’s about how other sources of information, other bankers view the U.S. whistleblower program.”

Birkenfeld has become something of a cause celebre among whistleblowers because of the magnitude of his case and the fact that he was jailed after cooperating with authorities. His lawyers say he discovered UBS’ illegal activities in 2005, and after the company failed to change them he went to U.S. authorities with the information in 2007.

Birkenfeld, 47, served 31 months of a 40 month prison sentence after pleading guilty in 2008 to a count of conspiracy to defraud the U.S. related to his work for UBS. The Justice Department said Birkenfeld did not reveal his own misconduct in helping a client, a charge his attorneys say is not true.

As Birkenfeld entered prison in 2010, he called his treatment an injustice, saying, “I’m a proud American who did the best I could for my country and this is how they reward me.”

His time was cut short for good behavior in prison and “they did not take one minute off his sentence” for his cooperation with the IRS on the UBS case, Kohn said.

Kohn said Birkenfeld left prison in August and is now confined to a house in a New Hampshire conference center — he did not say where — and works as a groundskeeper to satisfy his release requirement for a job. He said his home confinement ends in November, when he will begin three years on parole.

“This is the day I thought would never come,” said a statement issued by Douglas Birkenfeld on his brother’s behalf. “This is a monumental day not only for me, but for every whistleblower worldwide.”

Bradley Birkenfeld did not appear at a Washington news conference held by his lawyers, who said their client did not have government permission to talk to reporters.

Kohn said Birkenfeld has already received his check — from which the IRS has already withheld taxes. He would not how much was withheld.

Gordon Schnell, a New York lawyer who has handled whistleblower work and is not involved in Birkenfeld’s case, said the huge award signaled a possible turnabout by the IRS whistleblower office, which he said has had a reputation for doing very little. The agency’s latest annual report said that in 2011, its whistleblower office received nearly 7,500 cases and had a staff of 18 people.

“It’s sending out a message to whistleblowers, ‘Don’t stop coming. Our doors are now open for real and we will listen to you,'” said Schnell.

Still, Schnell said he wondered why the IRS said so little about the award and failed to publicize it energetically to attract more whistleblowers. The agency acknowledged Birkenfeld’s award in terse written remarks by a spokeswoman, Michelle Eldridge.

She said privacy laws bar the agency from saying much about the case. She said Birkenfeld signed a disclosure waiver allowing them to confirm his award.

“The IRS believes that the whistleblower statute provides a valuable tool to combat tax non-compliance, and this award reflects our commitment to the law,” Eldridge said.

The Justice Department said it would let the IRS comment on the Birkenfeld case.

In a summary of the award provided by Birkenfeld’s lawyers, the IRS wrote, “Birkenfeld provided information on taxpayer behavior that the IRS had been unable to detect,” including methods used by UBS AG and relationships between people involved in transactions.

“The information provided by the whistleblower formed the basis for unprecedented actions against UBS AG, with collateral impact on other enforcement activities,” the agency wrote.

The IRS whistleblower program was strengthened by Congress in 2006 to focus on high-earning tax dodgers, guaranteeing awards for whistleblowers whose information leads to collections of at least $2 million in unpaid taxes, interest and penalties. The agency is allowed to pay an award of up to 30 percent of the collected taxes, interest and penalties.

In its annual report on the whistleblower program, the IRS said it collected $48 million from scofflaws under the program last year and handed out $8 million in awards. That’s down from $465 million collected and $19 million in awards in 2010. The report did not explain why the amounts had decreased.

Members of Congress including Sen. Charles Grassley, R-Iowa, who helped write the stronger law, have complained that the agency has not been aggressive enough in paying awards.

“The potential for this program is tremendous, and it’s up to the IRS to continue paying rewards and demonstrating to whistleblowers that the process will work and that they will be heard and protected,” Grassley said Tuesday.


Associated Press writer Stephen Ohlemacher contributed to this report.

$1 Billion To Be Paid By the Bank of America to the United States

As part of the global resolution between the United States of America and the five largest mortgage servicing banks in the country, which will bring much needed relief to financially distressed homeowners nationwide, Loretta E. Lynch, United States Attorney for the Eastern District of New York, today announced that the government will also resolve its claims against the Bank of America, Countrywide Financial Corporation and certain Countrywide subsidiaries and affiliates (Countrywide) for underwriting and origination mortgage fraud.

Since 2009, the office has been investigating the Bank of America’s lending practices to determine whether the bank, through Countrywide, which the bank acquired in 2008, knowingly made loans insured by the Federal Housing Administration (FHA) to unqualified home buyers. To date, the FHA has incurred hundreds of millions of dollars in damages as a result of this conduct. The investigation also encompassed allegations that the bank and Countrywide defrauded the FHA insurance fund by originating mortgage loans that were based upon inflated appraisals. During the investigation, the office determined that the bank’s conduct provides a basis for affirmative civil enforcement under, among other legal remedies, the False Claims Act, 31 U.S.C. §§ 3729-33.

As part of the global settlement, Bank of America will pay $1 billion to resolve the wrongdoing uncovered during the office’s investigation. The settlement will entail an immediate payment of $500 million to provide a recovery for the harm done to the FHA by Countrywide’s conduct. Payment of the second $500 million will be deferred to fund a loan modification program for Countrywide borrowers across the nation with underwater mortgages. Under the terms of the program, Bank of America will solicit all potentially eligible borrowers and provide a loan modification to anyone with an eligible mortgage who accepts the offer. If, after the expiration of three years, the bank has not met its obligation to apply the full $500 million to provide such relief, any remainder will be paid directly to the United States.


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