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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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 board chair 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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DOJ withdraws appeal in criminal tax whistleblower case; whistleblowers to obtain US$12.9 million award

WASHINGTON, D.C. | MARCH 29, 2018—The U.S. Court of Appeals for the District of Columbia Circuit today will dismiss an appeal filed by the U.S. Department of Justice (DOJ) and Internal Revenue Service (IRS) challenging the right of whistleblowers to obtain a financial reward based on disclosing information that results in the criminal prosecution of tax evaders. The case concerned a major international financial institution that was sanctioned for illegally assisting U.S. citizens in evading taxes. The IRS had initially denied an award to the two whistleblowers.  The whistleblowers challenged the denial in Tax Court and prevailed.  However, the DOJ and IRS challenged this finding in the Court of Appeals. Today, at the request of DOJ, that appeal will be dismissed, and the two whistleblowers will become the first persons to obtain an IRS whistleblower reward based on a criminal tax prosecution.


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In Digital Realty Trust v. Somers the Supreme Court issued a destructive decision that will have far-reaching consequences for whistleblowers. Seemingly unaware of the practical consequences of its decision, the Supreme Court unanimously ruled to leave whistleblowers who report internally without critical protections under the Dodd-Frank Act.

Writing for Law 360, NWC Executive Director Stephen M. Kohn explains that employees now take grave risks in using internal compliance programs. In light of the Supreme Court’s decision, whistleblowers should hire an attorney and take their complaints directly to the Securities and Exchange Commission (SEC).


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Washington, D.C. November 28, 2017. Rejecting arguments by Senator Charles Grassley, the Securities and Exchange Commission (“SEC”) and numerous representatives from the whistleblower community, during today’s oral argument in Digital Realty Trust v. Somers (No. 16-1276), the U.S. Supreme Court Justices expressed support for stripping internal whistleblowers of protection under the Dodd-Frank Act (“DFA”).

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The fate of corporate whistleblowers and compliance programs is on the line as the U.S. Supreme Court reviews the case of Digital Realty Trust V. Somers. At issue in this case is whether whistleblowers who report potential violations within their organizations, as opposed to reporting directly to the U.S. Securities and Exchange Commission (SEC), are protected under the Dodd-Frank Act (DFA).

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This morning, the U.S. Supreme Court heard oral arguments in State Farm Fire and Casualty Company v. U.S. ex rel. Rigsby. Having suffered a 758-thousand-dollar jury verdict for defrauding the Government following Hurricane Katrina, State Farm is now attempting judicial gymnastics to avoid paying the judgment.  State Farm is asking the Supreme Court to automatically dismiss False Claims Act cases where whistleblowers violate the FCA’s seal provision (31 U.S.C.S. § 3730(b)(2)), instead of using a balancing test—which courts in the United States have historically employed when seal violations occur—to determine the appropriate course of action.

Justice Elena Kagan honed in on a very important question during today’s argument, “…. given that the government is the beneficiary of this [seal] provision, why shouldn’t we give very significant discretion to the government?”
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Washington, D.C. June 22, 2016 – Today, the U.S. Department of Justice filed a Notice of Supplemental Authority in a pending False Claims Act case, U.S. ex rel. Westrick v. Second Chance Body Armor, et al., No. 04-0280 (D.D.C.), setting forth the DOJ’s official position on the impact of the Supreme Court’s unanimous decision announced last week in Universal Health Services, Inc. v. United States ex rel. Escobar, 579 U.S. ___, slip op. No. 15-7 (June 16, 2016). In its filing today, the DOJ argues that the Supreme Court’s unanimous decision in Escobar discussion that a contractor’s “misleading half-truths” to the government “unequivocally supports the United States’ argument” in the Westrick case that Toyobo Co. Lt. and Toyobo America, Inc. (collectively Toyobo) “had a legal duty to disclose” its knowledge that the degradation of Zylon bullet-proof vests that it sold to the government “contradicted Toyobo’s misrepresentations about the superiority” of those vests.
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Supreme Court Unanimously Supports Whistleblower under False Claims Act

Washington, D.C. June 16, 2016. In a unanimous ruling issued today, the United States Supreme Court upheld a whistleblower’s claim in Universal Health Services v. U.S. ex rel. Escobar.  The Court, in an opinion by Justice Thomas, affirmed the “implied certification theory” of liability under the False Claims Act (FCA).  This theory permits contractors to be liable for fraud when they fail to disclose material non-compliance with regulatory requirements. 
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