The False Claims Act (FCA) is a powerful tool for recovering funds fraudulently obtained from the government. The role of the relator – one who relates to the government the fraud being committed against the government – has been interpreted in a manner that encourages whistleblowers to come forward. Courts generally allow relators significant leeway when gathering evidence because proof could otherwise be lost, misplaced, or suppressed. If the government is successful in recovering “proceeds” in a qui tam case, the relator is entitled to a percentage of the government’s recovery.
How much evidence must the relator collect to support a qui tam action? What legal considerations exist when he or she gathers evidence? What are the relator’s ethical duties to his or her employer and the government? Join the Federal Bar Association’s Qui Tam section as it provides fresh analysis on the rapidly changing landscape of FCA enforcement at the Qui Tam Conference in Washington, D.C. February 27-28, 2018. Sign up today at www.fedbar.org/quitam18.
The relator plays a critical role in putting the pieces of the fraud puzzle together for the government in a coherent fashion since frequently, the whistleblower in a qui tam action is somebody who is an expert in an industry and can explain regulations and industry practices. Moderator Joel M. Androphy (Berg & Androphy), along with speakers David L. Douglass (Sheppard, Mullin, Richter & Hampton LLP), Jack E. Fernandez (Zuckerman Spaeder LLP), and Darrell Valdez (Assistant U.S. Attorney, Washington, D.C.), will discuss the role of the relator at the panel on “Managing the Relator.”
Qui tam relators are not expected to have the burden of analyzing the legal significance of each piece of evidence before gathering and preserving it for their counsel and government to review. As long as the relator has some basis to reasonably believe that the documents have some relevance to the allegations, collection of such documents should be permitted.
Does the relator have access to the documents in the course and scope of his or her employment? Generally speaking, as long as the relator is preparing to file a qui tam suit or disclose the information to the government, his or her search efforts should be unimpaired. Nevertheless, a relator is usually prohibited from digging through someone’s office without permission to gain computer access unlawfully or through false pretenses. Panelists will address how the attorney-client privilege or enforceability of an employee confidentiality agreement could prevent the relator from disclosing evidence.
Filing a qui tam suit presents certain financial and social risks to the relator. For example, once the word gets out that someone has blown the whistle on his or her employer, that person can have a tough time finding a new job. Co-workers whose own careers may be threatened by the lawsuit may ostracize the relator. Furthermore, if the relator has violated the law, the relator may face criminal or civil liability.
Discuss the ins and outs of qui tam actions and the role of the relator at the Qui Tam Conference February 27-28, 2018. Sign up at www.fedbar.org/quitam18 on or before January 19, 2018 to save on registration rates!
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.