False Claims / Qui Tam

Duke University reported in January that its scientists won $384.6 million last year from the National Institutes of Health, “ranking 9th in the country among universities, research institutions and teaching hospitals that are awarded the taxpayer-based research dollars.”

This week, they had to give some of it back.

Duke has agreed to pay $112.5 million to the U.S. Government to settle a suit brought by a whistleblowing lab tech. The case involves another research technician who fabricated data from 2006 to 2013. The findings were used in applications for some of those NIH-funded studies.

The government investigation began after Joseph M. Thomas brought a qui tam case under the False Claims Act. Thomas’s share of the settlement will be $33,750,000.

The Justice Department announcement quoted U.S. Attorney Matthew G.T. Martin saying that taxpayers expect federal grant dollars will be used honestly.

“Individuals and institutions that receive research funding from the federal government must be scrupulous in conducting research for the common good and rigorous in rooting out fraud,” the statement notes.  “May this serve as a lesson that the use of false or fabricated data in grant applications or reports is completely unacceptable.”
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Title page Supreme Court case 18-31`5Members of the Supreme Court are skeptical of interpreting the statute of limitations in False Claims Acts cases in a way that would “help fraudsters,” according to attorney Stephen M. Kohn, who attended arguments today in a key False Claims Act case.

Kohn is author of an amicus brief in the case submitted on behalf of the National Whistleblower Center. A decision in Cochise Consultancy, Inc. v. United States, will determine the statute of limitations window for False Claims Act (FCA) cases when the government declines to intervene.

“The Justices appeared to understand the purpose of the False Claims Act is to help the government uncover fraud and were skeptical of interpreting the statute of limitations in a manner that would help fraudsters,” Kohn noted

More from Kohn’s report:

Demonstrating the Courts understanding as to why Congress would have wanted a longer statute of limitations when the relator moves a False Claims Act case forward, even without the government, Justice Sotomayor noted that, “in qui tam the recovery in bulk goes to the government.”
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The Supreme Court is scheduled to hear arguments on Tuesday in Cochise Consultancy, Inc. v. United States, a case that will determine the statute of limitations window for False Claims Act (FCA) cases when the government declines to intervene.

At issue:  How should the statute of limitations apply in a qui tam suit in which the United States declines to intervene?  Does the three-year limitations period begin to run from the date of the whistleblower’s knowledge of the alleged false claim. Or does it begin on the date of the government official’s knowledge of the alleged false claim?

The case revolves around whistleblower Billy Joe Hunt. In 2013, he filed a qui tam case alleging fraud by his former employer, a war contractor performing munitions clean-up work in Iraq in 2006. The government declined to intervene in Hunt’s case and it was dismissed by a district court.  The Eleventh Circuit then allowed the case to go forward ruling that the FCA’s three-year limitations period was triggered by the government’s knowledge of the alleged fraud—not the whistleblower’s knowledge.

Those arguing in support of the Eleventh Circuit ruling include the federal government and a 20-state coalition. An amicus brief filed on the coalition’s behalf by the Indiana attorney general argues that the states have a “strong fiscal interest in ensuring the False Claims Act (FCA) provides adequate time to investigate, prepare, and file FCA claims.”


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The False Claims Act (FCA) has long served as a powerful weapon against fraud and waste in government programs, from rancid Civil War rations to Medicare scams. The Department of Justice (DOJ) recovered $2.88 billion under the law last year, with whistleblowers involved in the majority of cases.

March 2 marks the  anniversary of the law, which was signed in 1863 by President Abraham Lincoln. After the Civil War, the FCA continued to identify military contractors guilty of mismanagement and fraud. With rising health costs, much of it covered by Medicare, most cases now involve medical providers and suppliers. The DOJ’s December report noted that $2.5 of the $2.8 billion in recovery involved the health care industry.The first line of a story in the trade publication Modern Healthcare reports “Healthcare industry groups have always hated False Claims Act whistleblower lawsuits.”


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When does the statute of limitations clock start running in a False Claims Act (FCA) case when the government declines to intervene in a whistleblower case?  That is the question the Supreme Court will consider when it takes up Cochise Consultancy, Inc. v. United States.

The National Whistleblower Center filed an amicus curiae brief in the case this week.

At issue: Must an FCA plaintiff rely on the statute of limitations in a suit in which the United States declines to intervene?  If so, does the three-year limitations period begins to run from the date of the whistleblower’s knowledge of the alleged false claim, or from the date of the government official’s knowledge of the alleged false claim?

The brief, written by NWC executive director Stephen M. Kohn, notes that his organization takes the position that the “merits of a claim often bear no relation to the duration of a case.”
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While serving as Assistant Attorney General under the first President Bush, William Barr took aim at the whistleblower provisions of the False Claims Act.

Whistleblower Lawyer Stephen M. Kohn
      Stephen Kohn

Now President Donald Trump’s Attorney General nominee, Barr stood alone among top Justice Department officials in vehemently opposing” the provisions,  Stephen M. Kohn, a partner in the firm Kohn, Kohn and Colapinto writes in the January 13 issue of The Hill.

“Although his arguments against the False Claims Act have long been discredited, his underlying reasoning reveal a deep-seated animus against whistleblowers,” Kohn writes.

The National Whistleblower Center has issued an “Action Alert,” calling on supporters to contact members of the Senate and urge them to Question Barr on his prior anti-whistleblower positions :


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Is the False Claims Act an “abomination”? Are whistleblowers “bounty hunters”? That’s what Attorney General nominee William Barr said during in a 2001 interview conducted at the University of Virginia’s Miller Center. Now, a group of advocates, academics and attorneys has asked U.S. Senate Judiciary Committee Chairman Chuck Grassley to find out if Barr still feels that way after 18 years.

Committee hearings on Barr’s nomination begin on January 15.
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Fresh water turtlesA recent investigation into wildlife trafficking highlights the importance of improving whistleblower incentives in the wildlife crimes sphere. Through “Operation Dragon,” the Wildlife Justice Commission (“WJC”) investigated the ties between the trafficking of endangered and CITES-listed freshwater turtles and the corruption that facilitates that illicit trade. Over the course of two years, WJC used undercover investigators to document operations of eight major trafficking networks in South Asia and the corrupt customs and transportation officials that consistently enabled the trafficking. The investigation allowed law enforcement to significantly disrupt these networks, arresting 30 individuals and seizing over 6,000 freshwater turtles. Wholesale value for a batch of 6,000 averages $3 million.
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Alex-Sasha-Chepurko-whistleblower-interview
Whistleblower on CBS show

On Friday, August 31, CBS News will air a segment featuring biofuels fraud whistleblower, Alex “Sasha” Chepurko on the season finale of Whistleblower.  The episode, Case of “THE 100 Million Dollar Scam”, details Chepurko’s incredible story of blowing the whistle on a nationwide biofuels scam.
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Dr. Aaron Westrick, Second Chance Body Armor whistleblower gives speech on National Whistleblower Day.Tonight, CBS News will air a special one hour broadcast on Dr. Aaron Westrick, the whistleblower who exposed unsafe bullet proof vests sold to hundreds of local police departments, the U.S. military and Secret Service.  The show, Whistleblower, will highlight Dr. Westrick’s 14-year qui tam lawsuit against the manufacturers of faulty bulletproof vests made with the fabric Zylon. Westrick was represented by qui tam attorney Stephen M. Kohn founding partner in Kohn, Kohn & Colapinto, a law firm which primarily litigates qui tam actions. Kohn also serves as the pro bono Executive Director of the National Whistleblower Center.
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