Justice News Flash: Featured Column : Whistleblower Posses Uncover and Prosecute Fraud

Whistleblower Posses Uncover and Prosecute Fraud

Qui Tam Lawyer Kathleen Scanlan discusses how whistleblowers serve as modern day posses helping to fight fraud on the government

Whistleblower Posses Uncover and Prosecute Fraud

// Justice News Flash: Featured Column // Kathleen Scanlan
(Whistleblower News) - In an often-cited Fourth Circuit opinion, the Court aptly described the FCA's qui tam or whistleblower provision as a means of reinforcing the government’s “regular troops” since it “let loose a posse of ad hoc deputies to uncover and prosecute frauds against the government.” United States ex rel. Milam v. Univ. of Tex. M.D. Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir. 1992).

Of course, in old western movies a posse of deputies is the group of men the local sheriff puts together to ride out and go after an outlaw who is terrorizing law-abiding citizens. The word posse comes either from the Anglo-Latin phrase "posse comitatus" (the force of the county"), the Medieval Latin ("body of men, power") or the Latin (to "have power, be able"). But it’s the Court's deliberate characterization of whistleblower relators as ad hoc deputies that is especially important. Ad hoc commonly refers to a solution designed to address a specific problem or task.

While a posse of ad hoc deputies is a great turn of phrase, the court's description is an extremely accurate way to describe the role of whistleblowers in False Claims Act cases. Through the False Claims Act whistleblowers are deputized with the power of the government to go after fraud in those cases where whistleblowers are particularly qualified to provide the solution. These ad hoc deputies are incentivized to come forward with the unique information whistleblowers have about a specific government fraud. That could be a nurse with evidence of a healthcare fraud, a pharmaceutical rep with evidence of unlawful off-label marketing, or an engineer with evidence of a defect in a product being produced for delivery to the government. These different whistleblowers are all equally empowered to be able to help the government recover in each distinct instance.

To date, the posse of ad hoc deputies has been relatively small. According to Department of Justice statistics, there were a total of 787 False Claims Act referrals, investigations, and qui tam matters brought to them in 2012. Of that number, 647, or roughly 83% of them, were qui tam or whistleblower matters. When the fraud on the government is regularly estimated to exceed tens of billions every year, it seems pretty clear that there is room for more than 647 whistleblowers in the government's posse of ad hoc deputies. Just like in those old westerns, the bigger the posse the more likely law enforcement will accomplish its objective. Unlike those old westerns, however, this posse of ad hoc deputies that uncovers and prosecutes fraud on the government includes women whistleblowers. After all, the government needs all the qualified help it can get.

Contributor -
Qui Tam Lawyer Kathleen Scanlan


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