On demand 1h 1m 21s Intermediate

Affirmative False Claims Act Litigation

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Affirmative False Claims Act Litigation

The False Claims Act was passed by Congress and signed into law in 1863. The statute has been amended multiple times but it is most well-known for its resource constraints and other considerations, often qui tam provisions, which allow private citizens to bring suit in the name of the government to recover dollars lost as a result of fraud. While the government may elect to intervene in an FCA case and run the litigation, resource constraints and other considerations often leave private counsel to pursue the case on their own. This one-hour CLE will provide a soup-to-nuts guide on litigating FCA cases. From determining when to take a case through case investigation, pleading considerations, motions practice, the use of experts, and readiness for trial. It will weave practical considerations into a narrative with the procedural and evidentiary rules. In an era where more and more solid FCA cases are being litigated without government intervention, this program provides essential guidance.

Transcript

- Hello, my name is Reuben Guttman, and I'm a partner in the law firm of Guttman, Buschner & Brooks. And today, we're going to be talking to you about Affirmative False Claims Act Litigation. What do we mean by affirmative False Claims Act litigation? Well, the best way to talk about that is to talk first about the False Claims Act. The False Claims Act is a statute that dates back to 1864, and it allows the United States government to bring suit where an individual or entity has filed a false claim for payment or approval with the United States government or an entity that holds money for the United States government. Since 1864, the statute was reinvigorated in 1986, and of course there are now at least two dozen states that have many False Claims Acts. And when I say many False Claims Acts, I mean acts that allow individuals to bring suit to recover money on behalf of the state or the various municipalities. And so, then again when we talk about affirmative False Claims Act litigation, what are we talking about? We're talking about cases where the whistleblower, known as a relator, has filed a suit in court, the government has investigated the case, and the government has decided not to intervene in the case, meaning that the whistleblower will take the case on his or own directly to the pretrial process and through trial, if it ends up there. And if you notice the beginning of this presentation, there's a slide that says MGH, Massachusetts General Hospital, to pay 14.6 million to settle surgery suit. That was the front page of the Boston Globe on February 19th of 2022. And that was a headline reflecting a slew suit where the United States government did not intervene in the case. And the whistleblower, whom I happened to represent, actually proceeded through the litigation process and was able to secure that result. In order for me to actually begin my presentation, I need for you to understand what the False Claims Act is. In essence, the False Claims Act involves, what it says, a false claim. And if you talk about what that means, you need to look at 31 United States Code 3729 through 3733. And if you look at 31 USC 3729, you'll see that the False Claims Act involves liability for certain types of conduct. But the ones that I'm going to talk about are 3729a 1A, knowingly presents or causes to be presented a false or fraudulent claim for payment or approval. Presents or causes to be presented, so the statute captures not only the individual or an entity who is filing a claim with the United States government, or an entity holding money for the government, or to be spent on behalf of government. The statute allows for liability to be imposed on an individual or entity that actually does that. And so, what are we talking about? We're not only talking about prime contractors with the United States government, those who have priv with the government or the state government when we're talking about the mini False Claims Acts, but we're talking about subcontractors that create products that are not made according to specifications, for example, and then are put into larger products that are sold or presented to the government. And then the statute also allows for those who create documents that are the subject or the gravement of the false claim, knowingly makes users or caused to be made or used a false record or statement material to a false or fraudulent claim. And if you look at 3729, you will see the various types, A1 A through G of conduct that can actually lead to a false claim. The other type of conduct that I think is most interesting is the A1G type of conduct, and we call that the reverse false claim, knowingly makes users or causes to be made or used a false record or statement material to an obligation to pay or transmit money or property to the government, or knowingly conceals or knowingly improperly avoids or decreases an obligation. Well, what the heck does that mean? Well, let me talk a little bit about a case I had a number of years ago involving a whistleblower who brought suit against 60 some odd oil companies that at leased 27 million acres of land from the United States government. And the purpose of the leases was to pump oil from those lands, and the leases had royalty payment obligations. And what happened was is that the oil industry, as according to this lawsuit actually suppressed the price that they were receiving for the oil when they sold it in order to pay fewer royalties, and that was a classic reverse false claim. And for those of you who are looking for that case, it's US Ex Rel. Johnson v. Shell in Texas, and it goes back to 1990 something or other, and you can look it up on Lexis. So, let's go forward and talk a little bit more about the statute. Who could bring a statute? Well, who could bring a claim? When we talk about the False Claims Act, a lot of people hear the word qui tam, qui tam meaning in the name of the king. And the statute actually itself contains what's known as a qui tam provision, and it allows individuals to bring suit in the name of the United States government. And so, 3730b actions by private persons, a person may bring a civil action for a violation of section 3729, which we just talked about, for the person and for the United States government. The action shall be brought in the name of the government, the action may be dismissed only if the court and the attorney general give written consent to the dismissal and their reasons for consenting. Well, what does it mean for the person and for the United States government? Well, for those of you who took constitutional law in law school, you know you read about Article III and the Standing Requirements. And within the Standing Requirements, there's an injury, in fact, requirement that in order to be in federal court, an individual has to have sustained some palpable injury. Well, in False Claims Act world, the injury occurs because a portion of the claim is assigned to or a bounty from the recovery is assigned to the whistleblower, the individual bringing the case, so that interest gives him technical standing under Article III of the United States Constitution. Now, there's a procedure for filing these cases, and the procedure is accorded under 3730b2, a copy of the complaint and written disclosure of substantially all material, evidence, and information the person possesses shall be served on the government pursuant to Rule 44 of the Federal Rules of Civil Procedure. The complaint shall be filed on camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders. The government may elect to intervene and proceed with the action within 60 days after it receives both the complaint and material, evidence, and information. Well, I think we all understand what a complaint is, it's a document that's filed in federal court that gets the case going forward, but what is this thing called a written disclosure? A written disclosure is the blueprint that the whistleblower and his counsel prepare and it's presented to the government, meaning the federal government and/or the state attorneys generals, if they're a part of the lawsuit. And that disclosure statement actually is it's the roadmap for the investigation of the case. It tells the investigators, the US Attorney's Office, what the case is about, it talks about what the relevant facts are, what the relevant documents are, it talks about who the witnesses are, it talks about whether the witnesses actually still work for the company. It's everything that you think an investigator would need to know so they can structure the investigation. Now, think about it this way, the provisions of this rule that we're talking about, 3730b2, says that the complaint remains under seal for 60 days. Well, it, it does technically, but actually what happens is is when a lawsuit is filed in federal court under the False Claims Act, the government asks for an extension. And the first extension may be as much as six months, and there'll be multiple extensions if the case merits a lot of investigation. And so, we've seen cases that can remain under seal for five years. And during that five-year period, what you see within the United States government justice department, or the state attorney generals, if it's a case under the mini False Claims Acts, there's a lot of change over in their offices, and so you want a disclosure statement that tells anybody who's coming into this case what the case is about, it's the master document. It's the master document that is the instruction manual for the case, and I think that's the way you need to think about this disclosure statement. Well, then there's this question about who can bring one of these cases under the qui tam in the name of the government provisions of the False Claims Act? Well, who can bring it? It's limited, you can't just open up a newspaper and read about some individual or entity that cheated the United States government and say, "You know what? I'm gonna go get a lawyer and file that lawsuit." In fact, you actually do need a lawyer because an individual can file a case pro se representing himself. The courts recognize that, but when an individual represents another entity, that's prescribed, it can't happen. And in this case, the individual meaning the whistleblower is bringing a case on behalf of the United States government, so the courts have been very clear that lawyers are necessary in these cases. Not only are lawyers necessary in these cases, but the cases can't just be willy-nilly filed, there are specific proscriptions meaning prohibitions against who can file one of these cases. And so, we look at 2730, in no event may a person bring an action under subsection B, which is based upon allegations or transactions, which are the subject of a civil suit or an administrative civil money penalty proceeding in which the government is already party. So, the idea is you know what? Can't bring a lawsuit if the government's already bringing something that's like that. Then it says the court shall dismiss an action or a claim under this section unless opposed by the government if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed in a federal, criminal, civil, or administrative hearing in which the government or its agent is a party. In a Congressional Government Accountability Office or other federal report, hearing, audit, or investigation. Excuse me, I said 2730, I meant 3730. But what I've just talked about is what's known as the public disclosure bar. The public disclosure bar, it's a provision of the False Claims Act that says, "You know what? You can't bring a suit based on information, and it's very specific information, that would've put the government on notice that that there's a case already, or there's a potential case already." And why does that provision exist within the False Claims Act? Well, Congress was concerned about parasitic lawsuits. They understood that they were going to incentivize whistleblowers to come forward because they were gonna pay a bounty, bounty meaning somewhere between 15 and 25% if the government intervenes in the case. 15-25% bounty if the government intervenes in the case, and up to 30% of the recovery if the government doesn't intervene with the floor of 25%. And Congress wasn't inclined to allow for bounty provisions under the False Claims Act if individuals were merely coming forward with information that the government already knew about. So, the government put in these standing requirements to preclude what the cases have called parasitic lawsuits. Now, there's an interesting twist to this. The statute was amended about 10 years ago, and the statute provides for the ability of the government to veto a claim or defense that the case was based on public disclosure. So, imagine this, you're a whistle blower, you file a lawsuit, the defendant files a motion to dismiss and says, "You know what? Everything that you're bringing to the table is something that the government already knows about, it's barred by 3730 e4 of the False Claims Act, and therefore the case should be dismissed." The government under the amendments to the False Claims Act has the ability to come forward and veto any public disclosure defense. So, if you look at 4a, the court shall dismiss an action or claim under the section unless opposed by the government, unless opposed by the government. That section is rarely used, but I bring it up because it's significant. When you take on a non-intervened case, you're likely to get all kinds of efforts to dismiss your case, a motion to dismiss with a number of potential arrows that are being hurled at you, one of which is the public disclosure bar. And one of the ways to deal with that is to go to the government and say, "You know what? We understand that you haven't intervened in the case, but we'd like you to veto, veto that portion of the motion dismissed, which is based on the public disclosure bar." Now, what is this thing called the claim? A claim means any request or demand, whether under a contract or otherwise for money or property and whether or not the United States has title to the money or property that is presented to an officer, employee, or agent of the United States, or is made to a contractor, grantee, or other recipient if the money or property is to be spent or used on the government's behalf or to advance a government program or interest. And if the United States government provides or has provided any portion of the money or property requested, or demanded, or will reimburse such contract or grantee or other recipient for any portion of the money or property which was requested or demanded. The term material means having a natural tendency to influence or be capable of influencing the payment, or money, or property. Now, here's what's really interesting about this. One of the important things that one must do when trying to understand how to apply a statute is reading the definition section. And the definition sections of the federal False Claims Act and the applicable the analogous state False Claims Acts are extraordinarily important to understand. First of all, boil down what this means is number one, that you could have an entity that's spending money on behalf of the government, and you could present a claim to that entity, even though it's a private entity, and any claim that's false, any bill, invoice, statement in order to secure a revenue stream from that entity would be a false claim, that's critically important. The other thing to understand is what makes it a false claim is that it must be material. And the term material means having a natural tendency to influence or be capable of influencing the payment or receipt of money or property. Now, that definition is phenomenally interesting because we think about a classic fraud claim under common law, one would say, "Well, the requirement is that you have to show that the money wouldn't have been paid at all." The government, for example, wouldn't have been paid the money if in fact we were just applying a common law fraud standard, but we're not applying a common law fraud standard, we're applying a standard that's specific to the False Claims Act. And under that standard, it's the term material means merely having a natural tendency to influence. And so, I think it's critically important to understand that portion. Okay, what kinds of cases are we talking about? Well, think about all the ways in which the United States government and the state government spend money. Healthcare, education, defense, all kinds of service contracts. Walk into any federal building, for example, and you're gonna see janitors who are cleaning the building and window washers who are cleaning the building. And if you think about this on a micro level, you're gonna say, "Well, you know, those folks must be subject to contracts. And the question is are those contracts governed by laws and regulations that are written into the contracts?" And the answer is yes, there are three basic wage and hour laws. The Davis-Bacon law, which covers construction contracts, there's a Service Contract Act, which covers service contracts, and the Walsh-Healey Act, which covers manufacturing contracts. And these are laws that govern the minimum wages and benefits under federal contracts. And by and large, almost all federal contracts have these laws written into them as a requirement of providing services. So, there's a myriad of obligations to the government when you're doing business with the government. And there's a myriad of entities that are providing goods and services to the government. Okay, now we talked about the ability of the state attorney generals to bring cases on behalf of the state where the states lost money, and the United States attorney general to bring cases on behalf of the government when the governments lost money. But let's talk about individuals who can bring suit on behalf of the United States government, that is these qui tam relationships. Okay, the individual plaintiff. The individual plaintiff contacts you, here's what you wanna find out. Basically why the client contacted you, what the client hopes to achieve in retaining a lawyer, what facts support the client's claims or defenses. When you're talking to this person, you have to think about what this person brings to the table in the context of the law that I just went over with you. Can he drill down on what statement was false, right? And it could be a material omission, right? There's a Supreme Court case called Escabar, which talks about the cognizability under the False Claims Act of material omission, or it could be an affirmative representation. So, the first thing is what was false, right? How is that presented to the government? And how is the government damaged? But you wanna know as a starting point, who is this person that's contacting you because False Claims Acts take some time and you're gonna be living with this client on and off for a period of at least four or five years because these cases have a long life, so why did the client contact you? What the client hopes to achieve in retaining a lawyer? What facts support the client's claims? And obviously, you wanna be asking a lot of open-ended questions, just let the client talk, potential client that is, how did you find out about your firm? What are you trying to accomplish by contacting a lawyer? You know, sometimes clients have axes to grind against the potential defendant. Is the client wanna bring a False Claims Act hoping that there's gonna be some recovery that he or she is not able to get under the False Claims Act? Does the client have a personal injury that he's trying to pursue against the defendant, but he or she can't bring it for some reason and wants to get back at them by bringing a particular claim? What would be the ideal outcome for the client? Has client met other lawyers? There's something to be said about, "Well, you know, I contacted 10 other lawyers, but you're the lawyer of last resort." Well, you'd want to know what they said, and you're entitled to at least ask that question. And in terms of putting facts together, what was the sequence of events? Clients tend to throw a lot of things at you, and what you want to do is organize their repertoire, but let them talk a little bit and then go back and say, "Okay, what happened first? What happened next? Then what? Then what?" And begin to create a timeline. And of course, you wanna ask what documents have to support your claims or defenses, are there witnesses who support your claims, are there others with similar claims? There are gonna be red flags that are gonna pop out. Is the client a serial litigator? Does the client have a personal ax to grind beyond the four corners of the suit? Has the client put their life on a hold pending recovery of a pot of money? You don't wanna be in a situation where this case has gone on for four years and the client says, "You know what? You misrepresented things to me, you told me I could... Or you led me to believe that this would be resolved within six months." You want the client to understand that when he or she steps forward and signs an agreement with a lawyer to bring a case that there is an obligation that's gonna span a number of years. When probed on the facts, does the client go off on tangents of personal animus? Keep in mind that ultimately when a False Claims Act is filed, that claim, that case, that lawsuit is gonna have to be presented to the government and the government's gonna bring the client in. And the question is is the client gonna be able to present the government with a narrative that makes sense and do so in a way that is believable, is credible to the government. Does the client respond to factual inquiries with hyperbole? In other words, "You know, they cheated the government. They cheated the government." Well, that's nice, but that's not sufficient to articulate facts that support why the government was cheated so you have to sort of take the client sometimes like a wild horse, slow them down, and say, "Okay, you said they cheated the government, I get the hyperbole, but what are the facts that support those allegations?" And can the client articulate how the government, various government entities have been injured? Does the client have their own vision of the law? Does the client say to you, "Well, this is I read the False Claims Act, this is what the law is all about." You've got to appreciate that that can be a problem. And you also wanna know whether the client has posted anything on social media. You know, you want a client to some degree that's gonna keep his or her mouth shut during the course of this litigation in part because these cases are filed under seal, and there's a court order to keep the case under seal. And moreover, if a client has posted something on social media, you don't want a situation where that posting on social media is inconsistent with the story that the client is gonna present to the government. Is the client in serious financial trouble or experiencing problems at home? These are the kinds of things that are gonna be red flags to a lawyer. None of them necessarily in and of themselves are gonna say I won't take this case, but they are certainly things that a lawyer needs to know about. And you need to explain to a client, of course, that you're not the real party in interest, this case is brought on behalf of the government unless, of course, there's a retaliation claim, which is an individual claim, which can be part of a false claims case, the damages are measured by the government's loss. And the client may say, "This is outrageous, this is disgusting, this is despicable," but the client may then come to learn, you know, for a surgery that he or she thought cost the government $50,000, maybe the government was only paying $500 and the loss may not be as significant as the client thought. And of course, with regard to anything that goes on in the case, it's fair to say that the government has filed say subject to court approval on the disposition of the case. The cases are originally filed or initially filed under seal, and that creates some problem in and of itself, why? Because we, of course, as lawyers have to deal with the ABA rules or the local applicable state rules on conflicts of interest. And if a case is under seal, we can't disclose the existence of that case to another client and/or get waivers of the conflicts, so that presents a problem for us. Let's talk about how we put these cases together. Obviously, the pleading rules have changed a lot over the last 15 years, and the requirements now are governed by two important cases, Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, 2007 and 2009 case. And what they stand for is the proposition in determining the sufficiency of a complaint. The court will strip out the conclusatory allegations, focus on the factual allegations, and determine plausibility. What are we talking about here that's gonna be stripped out? Conclusion, so for example if a conclusion is I like lemonade, an example of a fact is I just spent $10,000 on lemonade. And what I'm telling you is, is that when you put these cases together, right? Think hard about the allegations and think about is this a conclusion? Is this a conclusion or is this a fact? Quoting an email, quoting an email is the existence. The existence of an email is indeed a fact. Quoting a PowerPoint that's given by or provided by the company, quoting an invoice or document, or document transmitted by the company to the government, such as such as a bill or an invoice, right? Those are facts. False Claims Acts are in essence fraud cases, and in federal court and obviously in state courts, we must plead fraud with some kind of specificity. So, FRCP 9b, fraud or mistake, alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake, malice, intent, knowledge, and other conditions of a person's mind may be alleged generally, parse those two out. Parse those two out and keep that in mind for the motion to dismiss, the malice part and the allegation of fraud or mistake that must be pled with particularity. What are we talking about? Think about quoting individuals, names, dates, times, places, be specific. And when you're putting together a complaint, we're gonna talk about this, create a timeline. When you're putting these cases together, front load the case. Well, we talk about... What are we talking about when we say front loading? Plead as if there will be no discovery, focus on what the case will look like a trial, assume a motion to dismiss. Remember that the real client in interest is a government agency. The government will look at the claim and disclosure statement in determining whether to participate in the case. So, you want to put a complaint together that in the first instance will entice the government 'cause the government has the ability, A, to intervene, has the ability, B, to dismiss the case. And of course, if the first two don't happen, then the relator, the whistleblower known as relator can go forward and bring the case, but what you wanna be able to do because ultimately these cases are gonna be subject to a myriad of arguments for dismissal is you want to put a case together that is 100% solid, and that's what we mean by frontloading the case. And you wanna do as much research as possible to get that done. When putting these cases together and they take some time, false claims cases can take months, three, four, or five, as much as six months to put together. One of my colleagues, Eric Newman, is the Chief Litigation Counsel for the Antitrust Division at the Washington State Office. The attorney general, he says, "Good storytelling is the touch tone of effective advocacy. The development of an engaging story maintains audience interest and helps with their understanding and memory of your position. This is true, not just a trial, but throughout the litigation process from complaint through discovery, motions and appeal, and trial." And ultimately, you wanna be able to be in a situation whereas the lead counsel in one of these cases that you can do an elevator drill that is be able to articulate in a nutshell in 30 seconds what this case is about because ultimately when you're in front of the judge on a motion to dismiss, he or she is gonna call upon you to do that. Keep this in mind, non-intervening cases, very little government support. The government may be available to present a statement of interest on a particular point of law. And in fact, when the case, when the government decides that they're not gonna intervene in a case, and you decide that you're gonna pursue the case without the government, don't hesitate to go back to the government and say, "You know, we just got this motion to dismiss, do you think you can present a statement of interest on this particular point?" Maybe the government has an interest in arguing against the defendant's position on, for example, the application of 9b, or Iqbal and Twombly, or public disclosure, the government has an interest in preserving the integrity of the statute. And the government does weigh in with statements of interest that happens both at the state AG level when the state False Claims Act is involved, and at the federal level when the federal False Claims Act is involved. So, don't hesitate to make those arguments to the government requesting that that be done. Keep in mind that cases are built on circumstantial evidence, admissions, and government pronouncements. When you're bringing a case on behalf of the government and you don't get the government support, you are relying on documents that the government has already made public, you're relying on statements that the defendant already has made to the government, and you are also making a case on circumstantial evidence. Circumstantial evidence is evidence that doesn't speak for itself, you need to argue the inference from the evidence. Direct evidence on the other hand speaks for itself. So, for example, if I have a picture of a dog eating a piece of cake, that's direct evidence the dog ate the cake. If I have a picture of a piece of cake and a picture of a dog and another picture with the cake gone, and another picture with the dog with cake on its lips, then I would have to argue the inference from the totality of the evidence that the dog ate the cake. It's critically important in this day and age, particularly under the False Claims Act, to understand the rules of evidence. You know, when I graduated from law school, we understood we put a complaint in play in federal court and if there was an evidentiary issue, when we're presented with it, we'll figure it out another day. Well, that's not true anymore. Cases I say are front loaded and we're not as lawyers representing whistleblowers in non-intervening cases coming to the table with the full force of the United States government with us, we're coming to the table knowing that we're gonna be working a case on admissions and circumstantial evidence, so it's a critically important to understand the hearsay rule, 801 d2. We're gonna be bringing a case based on statements made by the defendant, we're gonna be looking at their emails, we're gonna be looking at their emails, we're gonna be looking at their PowerPoints and these are going they come in as non-hearsay, as statements of a party opponent. And the question is are they relevant? And it's incredibly important to understand 401 rules of evidencey because 401 rule of evidence doesn't speak to direct and circumstantial evidence, evidence is evidence, it's relevant if it has a tendency to make the fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. And so, you need to feel comfortable, you need to get a comfort level that your case is gonna be built most likely on circumstantial evidence. In this day and age, you know what? Our defendants in false claims cases cover their tracks, they cover their tracks. So, you're gonna have to have to argue the inferences from little tidbits of information, that's why we have this picture in this slide of a pyramid. The pyramid is made with little tiny bits of stone that are aggregated to make this massive structure, and that's the way you might want to think about your case. Okay, I wanna think also about the rules of evidence. Not only must a document be relevant, okay, not only must a document be relevant, but it also must be authentic, and so the important rules that you're gonna be looking at are FRE 901 and 902. And those are the rules governing authenticity. I don't need to go through these specifically, but I do wanna counsel you that when you read 901, you read 901, it's a roadmap for you, particularly when you're taking a deposition or you're structuring interrogatories on what types of questions you're gonna be asking that will allow you to make an argument that a document is in fact authentic. Now, the reality is that if the documents were produced by the defendants, whether they're emails, or PowerPoints, and so forth, you may be able to negotiate a stipulation that these documents are authentic. And also, when you're requesting documents, in the olden days we requested documents and maybe we got a chart and we couldn't figure out who authored the chart, so we couldn't figure out or couldn't ascertain enough information to determine whether it was a statement of a party opponent. We use all kinds of data experts who can look at metadata to look at the file that the document came from, and we can make the argument at least under 902, using that electronic discovery authentication rules to allow us to make the argument that something is indeed authentic. To think about the exceptions to the hearsay rule, and those exceptions appear under FRE 803. And, you know, keep this in mind when you're going through depositions and you've got a document and you think that you want to A, be able to show that it's relevant, B, that it's not hearsay, C, if it is hearsay, there's an exception to the hearsay rule. And of course, under 901 or 902, you wanna be able to show that it's authentic. Now, this is a discussion that you and I have been having about the False Claims Acts, and I'm talking to you about the rules of evidence. And the reason I'm doing that is that these cases are driven by documents and statements that are in the record already and that are going to be produced to you. And the rules of evidence are your best friend in terms of figuring out how you are going to be able to get that information, those documents into evidence and admitted in a court of law, either at the summary judgment part of the case or at ultimately at trial. Now, one of my favorite rules that's in the Federal Rule of Evidence is FRE 1006, and I call this the sleeper of all False Claims Act rules. And FRE 106 says among other things, the proponent may use a summary chart or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination, or copying, or both by other parties in a reasonable time and place, and the court may order the proponent to produce them in court. Now, why do we care about this rule and why is it particularly important with regard to False Claims Act litigation? Well, remember under the False Claims Act that the essence of the False Claims Act involves a false claim. And under the False Claims Act, there's a civil penalty that is accorded for each false claim, number one, and there's damages that flow, and you're entitled to the damages trebled plus you're entitled to the civil penalty. And so, ultimately under the False Claims Act, there's gonna be some kind of requirement that you show the court how many false claims were filed with the government because you want the full number of civil penalties that are allowed. And so, one way of doing that is to say, for example, if the case involves a number of bills that were false, a number of invoices that were false. Suppose, for example, you have a situation in a hospital where a nurse, I'm just being very broad, a nurse submitted a bill, but the bill billed at the doctor's rate, right? And the same nurse submitted a thousand of these bills at the doctor's rates. Well, what one would do is use FRE 1006 and aggregate all of those invoices or documents submitted on the applicable federal form, right? And present them under FRE 1006. And if you think about it, FRE 1006 is a nice little shortcut because I say shortcut because in the average circumstance, a lawyer was gonna say, "Well, I have 1,000 false claims, I mean, how am I gonna get them into evidence? You know, do I need an expert to sit up there and testify that he's reviewed a 1,000?" No, no, no, no, no, you're gonna use 1006. And if there's any question in terms of how to present this to the court, one way is obviously the pretrial conference to explain to the court that you're gonna be using FRE 1006 to aggregate or explain the totality of the false claims. You're litigating a case on behalf of the United States government in a non-intervened case. And the United States government is not sitting next to you presenting witnesses as to, for example, the materiality of the allegations or the materiality of the statements that you claim were false. Well, how are you gonna show that they're material? Well, the government has all kinds of representations on their websites. For example, suppose you have a case where there's a bridge contractor that built a bridge for the United States government under a Department of Transportation contract, but the bridge contractor violated the Davis-Bacon wage and hour law, it paid the workers sub Davis-Bacon wages. And you say, "You know what? That's material to the government." How are you gonna show that? Well, there may be all kinds of pronouncements from the secretary of energy, perhaps speeches or statements or policy statements. And those are the kinds of things that you might consider getting in as judicial notice at least to prove the notion of, or the obligation of materiality, right? You're gonna get a lot of information under the False Claims Act, and you're gonna get that in terms of document requests. And obviously, these are for the most part big cases. If you're deciding to take a case on a non-intervened case, you gotta assume it's a big case, because that would be the only logical reason that you'd wanna invest the time and resources in the case. So, in terms of structuring your document requests in terms of negotiating what you need, get what you need when you're reviewing electronic discovery, follow the trail on the e-searches. In other words, if you think that there's a particularly important witness, go into his file, search his name, if there's words or phrases that he or she uses, search those. You know, if the case is about off-label marketing, for example, of a drug, in order to get doctors to write prescriptions that are paid for by Medicare, Medicaid, I mean, off-label is gonna be obviously one of the words that you're gonna search. Misbranding False Claims Act is the defendant actually concerned about False Claims Act liability? Have they discussed it, fraud? You know, use common sense. You're not going to be able necessarily to review every single document that's tendered to you in a discovery request, but you want to be able to secure enough documents so that when you go to summary judgment, right, you can either make a case for summary judgment affirmatively, or you can fight, fend off the defendant's motion for summary judgment. And ultimately what's critically important is you wanna have enough documents to be able to argue your narrative at closing in front of the jury. Right, okay. How do we organize these cases? Well, the False Claims Act has a statute of limitations that can go back as far as 10 years, so what's critically important is having a timeline. And the timeline allows you as the lawyer to remember the case. We remember things in terms of sequence, right? And what happened first? When did your client actually begin to work at the defendant, or when did your client become familiar with this? What happened next? What happened next? That's one way to organize the facts. The other way to organize the facts is to look at good and bad facts and just to make a list. And when you do the good and bad fact analysis, and this is something that the National Institute for Trial Advocacy teaches, a number of law school teachers teach. Don't think about running down the conclusions, well, they committed fraud. What are the facts that support that? When you write down good and bad facts, that'll force you to do that analysis. And then also these cases tend to have a lot of players. Who were these players, right? Who were these players? And write down who they are, do they work at the company? What their responsibilities were. When you go through the documents, see if you can then attach their job descriptions to the name and begin to write out memos to the file that explain all this stuff. Okay, depositions, we have a slide here on depositions. You know, we're sure you've taken continuing legal education programs and depositions. We have depositions for a number of things. and we only get a limited number of depositions these days. When I graduated from law school 36 years ago, we can take as many depositions as we want, now it's limited to, in most cases, 11, 11 depositions excluding experts unless the case management order specifies otherwise, we take them to parties, third parties, employees of parties, and so forth. And, you know, we wanna facts, we want to identify witnesses and documents, we want to authenticate documents using 901 and 902. We wanna secure facts that will support the admissibility of documents, we want to remember the relevancy test under 401, and we ultimately wanna test our theories, we wanna test our theories. We wanna aggregate the facts in the beginning of the deposition and test our theories. Well, if you said this, this, and this, and this, well, it must be the case that this occurred, right? And obviously, you want to explore grounds for resolution and depositions have the impact of driving settlement. And think about this. 99 cases, 99% of cases are resolved short of trial, and depositions may be the only place where you're actually visiting with your adversary face-to-face. And whether it's at a break or in the hall going to get a cup of coffee, there may be an obligation, a potential to say to the other side or they may say to you, "You know, where are we going with this piece of litigation?" And so, it doesn't, it wouldn't surprise me if you reported back to me and said, "You know, the genesis of settlement discussions were our meetings during the deposition." And when you take depositions, what you wanna do is you wanna be nonconfrontational. You wanna be nonconfrontational at the beginning and get into a rhythm, and then ultimately what you wanna be able to do is just secure facts. Non-confrontational start off asking them that, their basic background. And I use a nutshell question, for example, I say, "Can you gimme a thumbnail sketch of your work history and educational background, right?" There's a psychology to dealing with witnesses. What's the psychology? Sometimes what's good to do is to bring them back to the time of the event that you're talking about, right? Right, don't give them an opportunity to say, "I don't remember, I don't recall." So, the example would be, "You know, tell me about your first day in high school." The witness may say, "Well, you know, I don't remember high school." Bring them back in time, "Where did you go to grade school? Where did you go after that?" Blah, blah, blah. And then they'll be in a better position to remember. Play to their ego, play to their ego. You know, it's not rocket science, what's the answer to this question? Or it's not rocket science, surely you know. Use documents, documents are really truth serums, they communicate to the witness that the witness can't lie, the witness can't obfuscate, the witness knows that you know the truth, and the witness is put in a situation where he or she's gonna be concerned that they're potentially gonna tell an untruth which may implicate them with criminal liability. And don't hesitate to test their propensity to lie. What's your wife's name? Answer I don't recall, right? You know what? If the witness can't remember his wife's name, God bless him, let him live with that answer. You know, question, no problem. If there's a question I ask that cause you to feel like you're deer steering into the headlights, let me know and we'll move on, right? And let the record just stay with the fact that the witness couldn't remember his wife's name, you know, courts aren't stupid, juries aren't stupid, they'll understand that the witness is obfuscating. Well, I think of two types of witnesses. One is compulsive truth tellers and the other is compulsive liars. And if you look at the slide that I'm showing you, you know, 5% of the population are compulsive truth tellers, and 5% of compulsive liars. And I'm making that up, I don't know, maybe it's 10%, maybe it's 2%, maybe it's 3%, but the bottom line is, is that most people, most people don't wanna lie, don't wanna lie. And the average witness will listen to his lawyer and try not to volunteer information. But if he's put in a situation where he understands or she understands that they actually do know the answer then they're not gonna lie. And so, the lawyer's job is to formulate questions that either bring the witness back in time, right, use documents, right? Or use other devices that cause the witness to know, "You know what? I do know that answer. I do know that answer and I can't lie to you, so I've got to divulge, divulge their response." Right, and that's one of the techniques that's critically important to do. Okay, in terms of how we gather information at depositions, and this is critical and False Claims Act litigation and all kinds of other litigation, ask open-ended questions. And I think of the old game Battleship, you know, in Battleship we said, "You know, is there a battleship at coordinate 3B?" And then the opponent would say miss or hit. The way to ask an open-ended question if you look at this slide is to say, "Okay, can you give me the coordinates of all of your battleships on the playing field?" Ask as broad a question as possible. And then once you get the answer to that, well, there are battleships at A1, AB, D1, D2, D3, D4, and so forth then you begin to begin to if you write that and those answers down, then you begin to say, "Well, sir, you've told me that there's a ship at, or a battleship at A1 and B1, can you tell me what kind of ship it is? You know, how many sailors on that ship?" And you can begin to drill down specifically on each piece of information. Okay. How do we litigate these cases? I keep thinking about my colleagues in the field who work for the Department of Justice, Veronica Finkelstein is a fabulous professor of law at Drexel University, she's also a federal prosecutor. She says, "The only way to effectively settle a case is to be ready to litigate. You need to know all the facts and the law inside and out to effectively negotiate. Think of the settlement like an abbreviated trial, your opposing counsel is not a neutral juror, but it's still your goal to move the needle. You must convince the opposing party that the risks of trial outweigh the benefits of settling. And to do that, you must preview how convincing your trial presentation would be if settlement fails." Now, you know what what's really, really, really important to understand in these cases is that you've got to constantly keep your eyes on the prize. And when I say keep your eyes on the prize, that you're thinking ultimately when you are putting a false claims case in play, what this case is going to look like in front of the jury, right? And if you ultimately prepare the case for trial, which means that you're doting every I and T with regard to the evidentiary requirements in terms of whether you've got enough evidence that's admissible, whether the evidence fits into a narrative, the narrative is something that the jury's gonna understand or that's gonna resonate with the jury, right? And that you're thinking about where there are holes in your proof and where you're gonna need experts. For example, if you have a case involving a pharmaceutical company that misbrands drugs, meaning that they've made a bunch of misrepresentations about the use of the drug and it causes the drug to be prescribed for off-label purposes and those off-label purposes are not medically necessary, then that's a false claim. If the defendant's conduct caused that to happen, that's a type of situation, for example, we are gonna need an expert to do a statistical analysis. So, you're thinking not only about your factual proof, you're thinking about the holes in the case where the experts are necessary, and you're thinking about what this trial looks like. What you're talking about here, what we're talking about here is we're talking about reverse engineering False Claims Act cases, reverse engineering False Claims Act cases. And if you reverse engineer False Claims Act cases, right, then you begin to think, "Okay, well, what's the progression of the case? And have I survived the litigation through each gauntlet up to the point of trial?" So, reverse engineering, you know, have I survived motions in limine or how am I gonna survive motions in limine? How am I gonna survive challenges to my experts? How am I gonna survive challenges to summary judgment? How am I gonna ch survive challenges to motions to dismiss? Right, and when I think about the ultimate goal of getting a case to trial and winning a trial, and what the progression of that case is going to look like, I also think about efficiencies that I can put into the system. Do I need to read through every single document and find 1,000 documents that say exactly the same thing? Or do I say to myself, "You know what? Rule 403 of the Federal Rules of Evidence talks about cumulative evidence, is this gonna be cumulative? Can I make the point in simpler fashion?" I have a colleague Dick Harpootlian and he's a State Senator in South Carolina, And he's a fabulous trial lawyer, he's tried over 200 cases and he said to me, he said, "The goal as a plaintiff's lawyer is to go from A to Z without touching the 24 letters in between." I have another colleague, had another colleague, the late George Barrett, came from a firm Barrett, Johnston, Martin & Garrison in Nashville. And George was an old civil rights leader lawyer, and George used to say to me, he'd say, "You know what? Don't be stirring up the frogs to feed the snakes." And what did he mean by that? He meant in the litigation process, he meant you know what he'd say, "Get what you need, get what you need to bring the case, get what you need to bring the case. And if you get any more, if you're over zealous, perhaps not, that's not the right word, ultimately you're gonna be stirring up the frogs to feed the snakes, it's gonna backfire." The point of advice I wanna give to you is that not every judge is familiar with the False Claims Act, not every judge is familiar with the False Claims Act, and it's got some peculiarity, this public disclosure bar and the idea that somebody can bring a suit on behalf of the United States government when he or she is indirectly damaged, the qui tam provisions. You know, you need to do a good job of figuring out who your audience is, does this judge understand the statute? The first time I ever filed a false claims case, Eastern District of Pennsylvania, the judge is now deceased, a fabulous judge. And I walked down to the court back then we were filing in-person, I filed the case and I filed a motion to seal the case, which you have to do, you have to have a mechanism to seal it. And the clerk says, "Wait here," and takes it up to the judge. She says, "Judge wants to see you." And the judge says to me, I go up to see the judge in chambers, he says, "Counselor, right, do you have to file a case under seal? It's a federal court, everything's filed in public." I said, "Well, your honor, here's the statute." He says, "You wait out here, I'll go read the statute." He comes back and he says, "You know, young man," I was a young man at the time, he says, "I apologize." He says, "I'd never seen this statute before." Well, you know, that was several decades ago, and obviously times have changed. But what we do see is in the state court system, we see a lot of state court judges, particularly if the case involves just a state court claim, state court judges who are not necessarily familiar with the False Claims Act, and it's important to educate them and lay this out. I did a panel a number of years ago at Emory Law School and I put a few judges together, four judges and I kind of asked them what their docket looked like and the number of cases. And they said some were federal and some were state, and they said, "Well, you know, sometimes we have 500 cases, sometimes we have 900 cases, sometimes we have 4,000 cases. We don't know all the areas of law, we like it when when the lawyers are good enough that they can help us understand the law and get into the law. Sometimes they're experts in certain areas and sometimes they're not." So, it's important to help the judges understand the statute because it has its unique provisions. And the other thing I wanna say is that in terms of how you deal with local counsel or opposing counsel, excuse me, in anything, professionalism is paramount. And I think in law school, professional is taught in the context of you need to do it because it's the right thing to do. If you think about the notion that most of these cases resolve themselves, particularly false claims cases. At the end of the day, you're gonna want to have some kind of rapport and you never want to personalize your relationship or personalize your attacks on your opposition, the messenger, and keep things open. And the other thing is, is that these cases are complex. We talked about the progression of the False Claims Act case through all the gauntlets that are gonna be in your way in terms of getting this case to trial. And there are gonna be places where you need conferences to stipulate to the authenticity of documents, you're gonna have discussions about depositions, you're gonna have stipulations on facts and the easy way to do that is to have a relationship with the opposing counsel. So, you know, obviously good storytelling is the touch skill of effective advocacy. The development of an engaging story maintains audience interest and helps with their understanding and memory of your position. This is true, not just at trial, but throughout the litigation process from complaint through discovery, motions, and appeal after trial. You know, that's one of the things that should guide you. And what I wanna say to you is that these are the kinds of cases, these are the kinds of cases where it's absolutely imperative that you read the law. I've given you four cases that I think are sort of necessary, perhaps the Bible so to speak of these cases, United States v. Neifert-White Company, goes back to 1968. The statute was intended to reach all types of fraud without qualification that might result in financial loss to the government. Vermont Agency of Natural Resources 529 US 765 2000, it addresses the question of standing among other issues. Critically important case that came down in 2016, Universal Health Services v. Escobar. And then there's a question about when a client comes to you and he says, "I have documents and the documents came from the workplace." There are all kinds of issues that come into play there, US ex Rel. Cafasso v. General Dynamics, it's a 2011 case in the Ninth Circuit. My name is Reuben Guttman, [email protected]. I love talking to lawyers out in the field, helps keep me abreast, maybe I'll learn something. I hope you have, and thank you for listening.

Presenter(s)

RG
Reuben Guttman
Founding Member
Guttman, Buschner & Brooks, PLLC

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