The FCA provides protections for whistleblowers in connection with their whistleblowing activities.  To establish that an employer retaliated against an employee in violation of 31 U.S.C. § 3730(h), an employee must demonstrate that:

  1. The employee engaged in protected activity.
  2. The employer knew that the employee was engaged in protected activity.
  3. As a result of the above, the employee was discriminated against.

Definition of FCA Retaliation “Protected Activity”

Prior to 2009, “protected activity” was defined as employee conduct “in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section.”

Continue Reading FCA Deeper Dive: FCA Retaliation Claims

The U.S. Court of Appeals for the Fourth Circuit recently affirmed dismissal of an FCA complaint for failure to state a claim under the FCA’s anti-retaliation provision, 31 U.S.C. § 3730(h). In U.S. ex rel. Carlson v. Dyncorp Int’l, LLC, the Fourth Circuit held that the relator failed to establish that he had engaged in protected activity, a required element for a prima facie retaliation case under the FCA.  In reaching that conclusion, the Fourth Circuit provided useful guidance on the standards used to assess whether a relator engaged in protected activity.

Continue Reading Fourth Circuit Interprets Meaning of “Protected Activity” Under 2010 FCA Whistleblower Amendments

Matt Curley was interviewed by Becker’s Hospital Review in connection with an article dated February 10, 2016, about how healthcare providers can take practical steps to reduce the risk of employees and third parties pursuing whistleblower lawsuits when they encounter potential compliance issues. The comments below expand upon that interview.

Healthcare providers receiving reimbursement from government payers know there is a significant risk of encountering whistleblowers under the False Claims Act. Last year, there were more than 600 new whistleblower lawsuits filed under the False Claims Act. And, during the previous five years, there have been nearly 3400 new False Claims Act lawsuits filed by whistleblowers.

Whistleblowers received nearly $600 million in FY 2015 year as their share of the proceeds of False Claims Act judgments and settlements. That amount brought total recoveries during the previous five years to nearly $2.5 billion.

With the often times protracted, expensive, and disruptive government investigations that can follow the filing of a whistleblower lawsuit under the False Claim Act, practical measures that can reduce the possibility of whistleblower activity are certainly worth consideration.

Continue Reading Practical Tips to Prevent Whistleblowers