Griffin Durham Tanner & Clarkson is known for its expertise in both pursuing and defending False Claims Act (FCA) investigations. Griffin Durham attorneys have prosecuted and defended FCA cases in the Southeast, totaling more than $100 million in settlements and judgments.
Our experience is broad. We have represented the United States, whistleblowers, companies, and individuals in FCA cases where allegations involve fraud against the government. With our unique background, we are prepared to represent anyone involved in an FCA investigation.
Call (404) 891-9150 to speak with a Georgia False Claims Act attorney in Atlanta, or (912) 867-9140 in Savannah.
How the FCA Works
Created during the Civil War, the United States False Claims Act (FCA) remains the powerful tool it was designed to be. It’s a statute under which the federal government can reclaim funds lost to contractors (i.e. those who provide the government with goods and services).
Georgia and 30 other states have their own False Claims Acts, modeled after federal law.
Under the FCA, the government and/or whistleblowers can file lawsuits against those they accuse of defrauding the federal or state government. By law, any whistleblower suit will first be filed “under seal,” or hidden from the public.
By keeping whistleblowers and their allegations anonymous at the start, the Department of Justice (DOJ) can then begin to investigate without the alleged violator becoming aware of the whistleblower or government scrutiny.
Common (and Not So Common) Violations of the FCA
Under the FCA, the government and parties whistleblowing on behalf of the government are protected from purchasing products or services that are defective in some manner. Generally, there is a standard of knowledge required for a party to be liable.
However, you can also collect if a company is reckless in not knowing about the defective nature of the product or service sold to the government.
False Claims Provision
The false claims provision of the FCA creates liability for knowingly presenting, or causing to be presented, a fraudulent or false claim for payment. This is an important provision as it protects your business from fraudulent charges to your account that could be detrimental to your business and your cash flow.
False Statement Provision
The false statement provision is important as it is essential that the information presented to you in business is accurate. Under the false statement provision, the FCA has created liability for knowingly making, using, or causing to be made or used a false record or statement that is material to a false or fraudulent claim.
Something is material to a claim if it impacts an important part of the claim. If you are misled into a business deal because a party to the transaction made a false claim, you could be entitled to damages.
Reverse False Claim
This involves improper conduct to avoid paying the government or to improperly retain an overpayment from the government.
The purpose of the reverse false claim is to protect the government from parties dodging legitimately owed debts or from being unjustly enriched if the government makes a mistake and pays out too much.
Conspiring to Commit a Violation of Any Other Liability Provisions
When there are multiple defendants involved in a case, the potential of liability for committing any other liability provisions can be brought.
A conspiracy is when two or more parties work together to do something illegal, so more than one party is necessary for this charge.
Less Common Violations
Traditional liability under the FCA happens when the government purchases a product or service that the company knowingly or was reckless in not knowing about the defective nature.
Meanwhile, false certification liability is an additional form of liability that happens when other elements of the agreement are violated. This can include a failure to comply with ancillary or additional requirements, as well as violations of state, regulation, or contractual provisions.
Other less-frequently invoked provisions include knowingly or improperly withholding money or property from the government. If a receipt is presented to the government with delivery without complete knowledge that the contents of the receipt are true, a violation may also occur.
Knowing buying or receiving as a pledge of an obligation or debt something that a government employee does not have the authority to sell is also prohibited by the FCA.
The DOJ pursues companies and individuals it suspects may have violated the FCA. With assistance from agencies, DOJ will use a wide range of tools to compel those under investigation and witnesses to provide information.
Common tools in FCA investigations include civil investigative demands (“CIDs”), administrative subpoenas, and inspection warrants, all of which can be used separately or in the same case to gather information.
When investigators approach targets, subjects, or witnesses, they will have likely already used these tools to obtain documents, medical records, emails, text messages, and sometimes even recorded conversations.
Frequently, an investigation becomes “overt” and people will become aware an FCA investigation exists.
After an investigation is complete, the government may decline to pursue the investigation further. The government may also decide to try to resolve the matter with a potential defendant without litigation. If a resolution cannot be reached, the government can pursue litigation or a whistleblower can pursue litigation on behalf of the government.
If the government or the whistleblower prevails at trial, the damages paid by the defendant can be enormous — three times the loss plus additional penalties ranging upward from tens of thousands of dollars for each violation.
A whistleblower can obtain up to 30% of the total amount recovered by the government as part of a settlement or judgment. Each year, millions of dollars are paid to whistleblowers around the country for alerting the government to fraudulent activities.
Common Strategic Issues
With decades of combined experience, the Georgia False Claims Act attorneys from Griffin Durham Tanner & Clarkson will employ all strategies that apply in advance of your position and your case, including the following.
1. Lack of Knowledge
The FCA requires that the defendant “knowingly” engage in the violation. Deliberate ignorance or reckless disregard for truth or falsity is included in this, but without meeting the requisite standard of knowledge the government cannot hold you accountable.
This defense is based on a lack of knowledge and can be used by corporations as a defense when it cannot be proven by the government that any one person knew of the falsity of the relevant claims or assertions.
Prior Government Knowledge
The courts have held that if the government had prior knowledge and approval of facts underlying a false claim, the defendant can negate the ability of the government to prove a “knowing” submission of a false claim.
This defense is not statutory but does apply in some cases.
2. Lack of Falsity
The FCA does not specifically define “false” or “fraudulent”, allowing your attorney to provide judicially constructed categories of falsity in support of your case.
Factual vs. Legal Falsity
Factual falsity is a false statement of fact, while legal falsity happens when the claim is factually correct but misrepresents the compliance of the deal with underlying statutes or regulations.
This defense argues that the alleged false claim could be based on a reasonable interpretation of the relevant contractual terms or regulations, rendering the false claim reasonable.
3. Lack of Materiality
Defendants are only liable under the FCA for false statements that are material to the false or fraudulent claim, and if the false statements are not material, there is no FCA claim.
Statute of Limitations for FCA Claims
The statute of limitations is an expiration date for a case to be brought to court. If you do not bring a case within this time, you are barred from doing so.
You must bring your action within the statute of limitations to protect your rights, as the applicable statute may vary depending upon the unique facts and circumstances of your case.
The statute of limitations for a federal FCA claim is either:
- Six years from the date when the violation was committed.
- Three years following the date when the US official who was responsible to act in the circumstances knew, or reasonably should have known, of the material facts to the right of action, but not over ten years after the date of the violation itself.
Contact Our Experienced False Claims Act Attorneys
The attorneys at Griffin Durham Tanner & Clarkson have experience from every angle of FCA case: as federal prosecutors, representing whistleblowers in meritorious cases, and defending those caught up in meritless investigations.
Call (404) 891-9150 for our Atlanta office or (912) 867-9140 for Savannah, or you can schedule a consultation online.