Whistleblower Lawyer & Attorney : LaBovick Law Firm, Florida : Federal False Claims Act, Qui Tam

This week, The Whistleblower Law Blog is delighted to host Blawg Review #159, the blog carnival for everyone interested in law.

During the week of May 11-18, 2008,  independent whistleblower coalitions, such as the  International Association of Whistleblowers (IAW), the Make it Safe Campaign, and many other independent whistleblower coalitions, will hold a series of simultaneous but separate events in Washington, D.C.. These events are designed to lobby Congress and alert the public to the need to support whistleblower protection. Some of the speakers for the Whistleblower Week 2008 in Washington D.D., include: Adam Kokesh, Iraq Veterans Against the War, Rev. Lennox Yearwood Jr, a former United States Air Force chaplain, and Congresswoman Sheila Jackson.

A few of the discussions shared on blogs covering Whistleblower  topics this week included the following posts: 

...In a post on the Whistleblower Protection Blog, Marshall Chriswell talks about a hearing by the Democratic Policy Committee for Monday, May 12th. The purpose of the hearing is to "examine the impact of American reconstruction and anti-corruption failures on the U.S. mission in Iraq."  Hopefully this will become an important bi-partisan issue to the Republican policy committee too.
...In a post on the Balkanization Blog, Marty Lederman discusses : The Military Commission Decision Disqualifying the Legal Adviser, Brig. Gen. Thomas Hartmann. Interesting how the media is covering this story in the various outlets.
...In a post on the Virginia Qui Tam Law Blog, Zachary Kitts discusses his rebuttal to an editorial in the D.C. Examiner on the False Claims Correction Act of 2007. Blogging is a great way to voice your opinions to information found in the traditional papers and online. Let's hope that the Republicans and Democrats find a way to support this important legislation that Senator Grassley and several others have worked so diligently to make it a bi-partisan effort.
...In the formerly named Question Authority Blog, Peter Rost, (One of the world's most well-known and whistleblowers)  tries on the new site name Pharma Law Blog for size.  Personally, I think it sounds great. Good Luck with the new name.

To add some fun and to bring back memories, I thought that I would use a few Nursery Rhymes to help me out with the Blawg Carnival. I hope that it brings a "Smile on Your Face" while reading the stimulating posts selected for the Blawg Carnival this week.

Our first Nursery Rhyme is: London Bridges: London Bridge Is falling down, Falling down, Falling down. London Bridge Is falling down, My fair lady.

... In My Shingle, Carolyn Elephant has a great post with burning bridges and finding new ones. She bravely admits being wrong about a previous opinion on how an associate handled a termination from a law firm. I see this as just changing one's opinion, once more facts were presented.  How refreshing to reassess a situation in light of new facts.
...In Law 21, Jordan Furlong discusses an important subject: Burning the Law Firm Newsletters. Okay, I must admit burning them all together is a bit harsh. You can also survey clients and ask what topics are of interest to them. Implementing reader feedback is a way to make it better.

This leads to our next Nursery Rhyme: Humpty Dumpty
Humpty Dumpty sat on a wall. Humpty Dumpty had a great fall. All the king's horses and all the king's men, Couldn't put Humpty together again.

...In the Legal Scoop, Scott Felsenthal, raises valid points in his post about the wear and tear of the practice of law. In the legal profession as well as in life, we should be aware of stressful things and take the appropriate actions to prevent Burnout.
...In the Sports Law Blog, Geoffrey Rapp, discusses the tragedy that happened to the filly, Eight Belles, the recent Kentucky derby, runner-up that had to be put down, due to two broken ankles. Sadly, I was rooting for Eight Bells to win. I wonder if she had not  been pushed so hard, would she be with us today?

Continue Reading...

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S. 2041, has received support from leadership in both parties and has moved out of the Senate Committe. Leading the charge is:  Sen. Charles Grassley (R-IA), Senator Richard Durbin D-IL), Senator Patrick Leahy (D-VT), and Senator Arlen Specter (R-PA).

Proponents of S. 2041, note that the new bill clarifies the existing scope of False Claims Act liability, while closing the gap of a limited amout of loopholes for companies to use for stealing money from taxpayers. 

Specifically, S.2041 would:

• Remove the confusion over the statute of limitations period by adopting a straightforward 10-year period; 
• Provide strengthened employment protection for whistleblowers.
• Clarify that False Claims Act liability protects all federal funds;
• Explicitly clarifies that the False Claims Act applies to those who discover an overpayment and decide to pocket the funds
• Solely vest the Government with the power to dismiss whistleblower-filed False Claims Act lawsuits that are based on public allegations.

According to Jeb White, President of Taxpayers against Fraud, "This Bill has broad bi-partisan support. It's hard to be opposed to building a better rat trap to catch corporate cheats, chiselers, and con artists."

As mentioned here previously on the Whistleblower Law Blog,
highlights of the bill include:

• Makes corrections to 31 U.S.C § 3729 removing the requirement that false claims be presented to a government employee.
• Amends the FCA to clarify the dismissal of parasitic claims filed based upon publicly disclosed information.
• Clarifies that false or fraudulent claims against non-U.S. Government funds under the trust and control of the U.S. Government are subject to recovery under the FCA.
• Clarifies a split between Circuit Courts of Appeal as to when a government employee may act as a qui tam relator under the FCA. 
• Makes technical and clarifying amendments to the statute of limitations in FCA cases.

Click here to read the False Claims Act Corrections Legislation 2007.

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Medicare fraud can happen anywhere and can be detected by the most least suspecting individual in a company.  Recently, Fred Steinberg, M.D, a radiologist and owner of the chain, of  University MRI and Diagnostic Imaging Centers, located in Florida settled a qui tam suit for $7 million.  The  Florida firm denied all charges and agreed to settle the qui tam suit according to a quote in the Sun Sentinel  "to end the uncertainty of protracted litigation."

The company was accused of overcharging Medicare for Medical scans and billing the federal government for some tests that were not medically necessary. There were also allegations that that the Florida company paid doctors under the table for sending them imaging patients for tests that could cost as much as $2,500 apiece.

Why is it that when an employee reports questionable government billing practices to management, in this case Medicare bills, the company  takes the defensive and fires the employee.

In the case of the Florida Diagnostic Imaging Centers, David Clayman, M.D, a former radiologist for the imaging centers, was fired after questioning the Medicare billing practices. According to a recent DOJ release, Dr. Clayman will receive $1.75 million as his share of the $7 Million recovery.

According to the American College of Radiology, a doctors' association, in a Sun Sentinel article, the cost for Medicare and insurers is about $16 billion a year for unnecessary imaging tests ordered by doctors who made money from them. These tests not only cost the government and taxpayers, but also expose patients to radiation and and raise medical costs.

One of our favorite crusaders in the Medicare fraud fight, R. Alexander Acosta, U.S. Attorney for the Southern District of Florida, stated that  “We will aggressively prosecute any physicians, including board-certified specialists, who abuse and steal from the Medicare system to line their own pockets.”  Attorney Brian F. LaBovick mentions in an article on health care fraud for a  Thomson West Litigation Reporter, that "We must continue to prosecute fraud on all levels. New amendments are needed to continue to foster the cottage industry of civil attorneys assisting U.S. attorneys' offices around the country with their qui tam investigations. Each state must enact its own qui tam statutes (there are now 22 states with qui tam laws). This will give states the ability to potentially capture additional funds for Medicare fraud prosecution at a local level, pursuant to the Deficit reduction Act of 2005."

The Florida qui tam case discussed in this post is: U.S. ex rel. David Clayman v. University MRI and Fred Steinberg, M.D. et al. Civil Action No. 02-81143 (S.D. Fla.). 

 

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The qui tam complaint against Pfizer, USA rel. Polansky v. Pfizer is pressing forward according to court documents filed by the Plaintiff's legal counsel, Hagens Berman Sobol Shapiro. To view the complaint, click here. (Warning, the document is pretty lengthy, 97 pages, but worth every moment spent reading.) This comes after the whistleblower complaint being initially filed with the federal government about 3 1/2 years ago and the federal government deciding recently not to intervene.

It can be difficult for a whistleblower to press forward with a qui tam claim, they often lose their jobs, face retaliation, lose family and friends and often are forced to give up something they truly love. ). The Pharmafraud Blogger discusses challenges whistleblowers can face while trying to do what is right, in the recent post  Big Pharma Retaliation, Just More of the Same, "If you think Dr. Polansky, or I, or any other "whistleblower" was motivated by money to file a qui tam, then you are sorely mistaken. Every one of us simply tried to do what was right".  However, I must add that whistleblowers, if successful, can receive up to 30 percent of the proceeds of what the government recovers. As we mentioned in a prior Whistleblower Law Blog post, In 2007, whistleblowers were awarded $177 million for their efforts in bringing corporations to justice, most of  which came from Health Care fraud.

Another well known whistleblower and one of the most prominent in the health care segment is Dr. Peter Rost.  He knows first hand how difficult it can be to bring a claim against a large pharma giant, such as Pfizer. Dr. Rost, former VP of Marketing for Pfizer, is an outspoken pharma whistleblower that went on to become an activist on the subject. He has authored several books including: KILLER DRUG and THE WHISTLEBLOWER, Confessions of a Healthcare Hitman and maintains a blog known as Question Authority.

Is Pfizer off the hook? Can they breathe a sigh of relief? Are they in the clear with Lipitor, since the government chose not intervene in the qui tam claim? David Armstrong provides a nice answer to this in the Wall Street Journal article, "Pfizer Is Sued Over Lipitor Marketing"., when he writes "The government hasn't intervened in other cases which led to huge fines against drug companies. One example is another case involving Pfizer, this one for the off-label marketing of Neurontin." Only time will how the claim against Pfizer for questionable marketing for the billion dollar drug will turn out. May the truth prevail in this uphill battle.

According to Pfizer company issued statements, they are the world's largest research-based biomedical and pharmaceutical company. In 2006, they earned $48.4 billion in revenues and invested $7.6 billion in research and development. In a Pfizer fact sheet, the company writes, "Every day, approximately 87,000 colleagues in more than 150 countries work to discover, develop, manufacture and deliver quality, safe and effective prescription medicines to patients." One can only hope they are not doing this at the sacrifice of lives in the process.

Pfizer stock most recently closed at $22.90 on the NYSE.

Click here to read more on this this from the WallStreet Journal online.

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A Whistleblower took his case public and to the Web after initially being ignored. A recent article by General Counsel entitled, Employee's YouTube Video Sounds Ethics Alarm.  The article talks about how a former Lockheed Martin Engineer felt something was wrong with his company's ship shipbuilding project for the U.S. Coast Guard. In his mind he felt that the materials Lockheed were selling to the government were not up to code and that sailors and national security were at risk . This whistleblower now has filed a quitam case against  his former employer. Initially, trying to do the right thing, the whistleblower, took his complaint to his superiors, but his warnings were not taken seriously maybe because this project known as Deepwater was a cost around $100 million. He was told that his allegations were baseless.

Nearly three years later, in February 2006, this whistleblower, contacted the U.S. Department of Homeland Security's inspector general. The IG sent auditors to speak with him. Unfortunately, after several months, he felt that the investigation was going nowhere, and felt that he should matters in his own hands and decided to do something revolutionary. He took his case to You Tube, for the world to hear and see if they agreed, that the Deepwater project should be looked into for safety reasons.

His revolutionary idea worked and his idea was picked up by several media outlets. A detailed report was eventually released by the Inspector General's Office.  The 10 minute You Video made an impact. The Coast Guard reorganized the program and took oversight of project management of the deepwater program in house, instead of having the contractors perform this oversight.

It is not known how much this whistleblower's quitam or false claims act case could be worth, if anything at all. Time will tell... One thing that is important to note, is that whistleblowers are taking things to the next level when reporting quitam False Claims Act cases. 

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Yesterday, the U.S. Senate, with a unanimous vote, passed the Federal Employee Protection of Disclosures Act (S.274). This new law enhances the protection for federal employee whistleblowers.

Passage of S.274 now sets the stage for a conference between the House and Senate to agree final legislative language. On March 14, 2007 the House enacted the Whistleblower Protection Enhancement Act (H.R. 985), which expanded the scope of whistleblower protections to national security related agencies, permitted employees to obtain jury trials in federal court, provided enhanced protections for federal contractors and protected employees who exposed misconduct to their managers.

According to the Government Accountability Project (GAP), the Whistleblower Protection Act reform has been struggling for eight years to reach the end of a convoluted approval process. Proud supporters include the bi-partisan efforts of Senators Daniel Akaka (D-HI), Chairman Joseph Lieberman (I-CT) Susan Collins (R-ME), Charles Grassley (R-IA), Carl Levin (D-MI) and Richard Durbin (D-IL). In 2004 and 2005 the bill passed committee, but was blocked by procedural holds. Last year Senators Levin and John Warner (R-VA) obtained its Senate approval as part of the Defense Authorization funding bill, but it was killed in the conference committee on the defense bill.
Unfortunately, the GAP also mentions that S. 274 does not contain five critical reforms passed in March by the U.S. House of Representatives in H.R. 985, co-sponsored by Chairman Henry Waxman (D-CA) and Rep. Todd Platts (R-PA). The House-passed reforms include protection for national security whistleblowers at the FBI and intelligence agencies, protection for government contractors, protection for federal baggage screeners, jury trials for a fair day in court, and reinforced protections for federally-funded scientists. The House passed H.R. 985 by a 331-94 vote, a veto-proof majority, despite a threat to veto the legislation issued by the Bush administration the day prior to the vote.

All things considered we have made progress with this new legislation.  Let's see if Congress can continue to work together and do what is right in regards to this whistleblower legislation that aims at protecting our brave citizens that come forward and report fraud against their employers.

We're counting on our elected officials to make this a reality so that whistleblower rights can be enforced and protected.

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I just love hindsight. In hindsight, everything is so clear. Things that look tenuous on the front end are no risk easy “layups” in the rear view mirror. You may wonder what I am talking about.

I am talking about one of my favorite subjects, the right to Attorney’s fees, which is how I support my family and provide food, shelter and education for my children. Recently, I came across an article on Boston.com by Sacha Pfeiffer regarding "blowing the whistle on lawyer’s fees".

Contingency fees are the single greatest invention to permit the common man access to fight big corporations and government intrusion. It is simply bad public policy for the court to intervene in a contract between an employee and the employer.

In a typical Qui Tam case the relator goes to the attorney's office with a claim about how their employer is defrauding the Federal government (or State Government). Sometimes it involves an obscure contract that affects about .001% of the general population. The Relator wants the attorney to listen to their story and investigate their claims. In most Qui Tam cases, the attorney needs to do extensive research in the case, to determine if the fraud claim can be legally supported. If the attorney determines there is sufficient evidence to support this potential claim, the attorney must finance the claim with personal money and time. Once the litigation process has started, time and hours on the case usually add up. Any case costs incurred are paid by the attorney personally.

Isn't it easier to just sell your soul to the big corporate devil? Private Industry pays white shoe (corporate) lawyers very well. They give them good benefits; sometimes 12 weeks paid vacation, stock options and generous retirement plans. Usually they work 9 to 5. All with the guarantee that on Friday the paycheck is in the bank. I have a good buddy that has been with Lucent Technology for years. He lives a good life. Lucent treats him well.

So, why do Plaintiff Attorneys, in the areas of Qui Tam, Employment Attorneys, and Personal Injury,  Attorneys practice law? The reason is two fold. First, most love the idea of prosecuting cases. They get significant internal gratification knowing they are making the bad guys pay up. Second, and equally important, it is lucrative. America awards risk and hard work. When an attorney takes personal resources, time and money, and invests in a case, the attorney deserves to be paid exactly what the employer (client) agreed to pay him. This is especially true if the employer (client) is making a large amount of money as well as a result of the attorney’s efforts.

In the Boston.com article, the Relator's attorney took the risks and did the work and was not paid for any of it. In the end the Relator got what they wanted and didn't complain. However, someone did: the corporate lawyers are complaining about the Qui Tam attorneys fees. Why?

Big corporate industry is constantly working to prejudice the average American against Plaintiff's attorneys. They would love to take away the contingency fee all together. Big corporate industry can afford to hire a legion of $500 per hour lawyers to paper and destroy the common man in court. Ask yourself, honestly, if you had to bring a lawsuit and you had to hire an attorney, how much could you really fight? For 99% of the American public the answer is almost ZERO. If I personally worked on an hourly basis I would need to charge a $25,000 retainer just to get started. I would then bill my clients at the end of every month. Each month's bill would be about $10,000 just to keep the litigation going.  The basic trial runs a minimum of $100,000.00 plus costs. Now, who has money for that? Any major corporation can pay that litigation bill for several cases all day long. This is pocket change for them. Not even a concern. But for the average American, it would wipe them out. Tap their life savings. Extinguish the equity in their homes and deplete any investments they have saved over the years. Then, what happens if they lose the case? They would lose everything. So, you know what? They choose not to do anything right at the beginning and the big corporate body wins every time. So, yes, they are intentionally trying to destroy the contingency fee in America and with it they will destroy your access to the court system and your right to be protected from corporate abuse.

Now, since I always go back to the political, it is against my Republican nature to have government interfere with a contract between two entities which does not breach or harm the moral fiber of our social compact. A few years ago in Florida the medical industry tried to limit attorney fees in medical malpractice cases to 10%. I was in line waiting to vote against that amendment and I overheard a two people talking behind me. They were talking about how good it was for the people in the State to have this amendment because it would save them so much money. One guy mentioned he was a local real estate salesperson, so I politely mentioned that if this amendment passed and attorneys had their fees limited then their was a political movement that was going to try and limit real estate sales commissions to 2% instead of the typical 6 or 7% they now put in most contracts. The look of astonishment on his face was fantastic. He literally did not know what to say except how unfair it would be. He mentioned that real estate salespeople put out money to advertise the house and how if the commission are only 2% how can they afford to do any advertising? I agreed completely and mentioned that medical malpractice attorneys routinely put up over $100,000.00 to try medical malpractice cases and that doctors win 80% of those trials, so how can the attorney afford to help people if when they win they can't recoup their lost money?

All the big cases, the million dollar monsters, look easy from the rear view mirror. But when you are sitting in your office and you are looking at spending 3 years and $100,000 of your money on a case that doesn't look like a slam dunk, it is a bit harder to read the tea leaves. 

Look at the whole picture. Contingency fees help the average person. Don't let a corporate propaganda lawsuit misinform you about what is best for you and for most Americans.

Brian

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One whistleblower and his lawyers are fighting for a $2.8 million share of a $10.5 million quitam settlement by Cell Therapeutics. According to the government, James Marchese, the whistleblower, was the "initiator or planner of the fraudulent scheme, according to Barry Meir's article in the New York Times. 

I would like to pose a question:  If you help create a fraudulent scheme for a company that allows them to make money under false pretenses, should you be allowed to receive an award for turning the company in?

Personally,  I think the answer should be a simple one. However, in this case with James  Marchese, there are a lot of circumstances that make the answer questionable. According to James Marchese, the government, would never have been able to build a case, without him. He provided detailed documentation that only an insider could have given the government. However, we can't ignore the little detail, of when Mr. Marchese reported the fraud.  According to reports in the New York Times, Cell Therapeutics fired Mr. Marchese in 2002 for allegedly arranging kickbacks to drug wholesalers, which happens to be the same year, he informed the FDA about the promotion of a drug for unapproved therapies. It is important to note that Mr. Marchese denies any wrongdoing. Could this be a smear tactic by the company to discredit the whistleblower? We will never know.

I can see this case being the foundation story for a best selling legal novel, by one of my favorite authors, John Grisham.  Here is my take on what a legal best selling story bases on this case would sound like. Whistleblower comes forward, reports fraud of large company. Whistleblower, conveniently leaves out details of any wrong doing, goes on to destroy any incriminating documents with the help of a lover. Shares all of the dirty little secrets with lover as to their part in the scheme that was not divulged to the authorities. In an effort to try their hand at writing fiction, pens a manuscript loosely based on the events of their case. Shares manuscript with lover to edit and give feedback.  As time passes, whistleblower and lover have a dispute, which leads to a nasty breakup. Lover marches into the authorities with detailed accounts of this fictional script and pours out all of the whistleblowers dirty little secrets.  Authorities have a change of heart about the whistleblower and decides that they deserve no parts of the reward, because they hid important information, their involvement of masterminding a larger scheme, they conveniently left out when they turned their employer in for fraud.  After authorities settle case against corporate giant, they tell the whistleblower that they will not receive the multi-million dollar reward. They fight it out in court.   You have to buy the book to see how the ending turns out.

Now we turn back to the events of the real case at hand, James Marchese and the Government fighting over how much money he should receive, if any at all for his contribution in the quitam case against Cell Therapeutics. The case go to court later this month. 

All eyes will be on Seattle to see how the case is resolved.  Maybe this will give a glimpse on the ending of the above mentioned legal novel.  Stay tuned... 

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The Justice Department reported this week that in Fiscal Year 2007, it recovered $2 billion in settlements in fraud cases. We are happy to report that most of the recoveries resulted from whistleblower lawsuits. The individuals who filed suit were awarded $177 million. Health care fraud accounted for the bulk of the settlements, with $1.54 billion stemming from cases involving programs such as Medicare and Medicaid.

Under the False Claims Act, whistleblowers can sue companies or individuals that they believe have filed fraudulent claims with the federal government. If successful, they can receive up to 30 percent of the proceeds of what the government recovers.

Let's hope that the legislation for Whistleblower Protections continue to be strengthened. This will encourage more Whistleblowers to come forward and report fraud against the government.

Click here to read more from the Associated Press Article.

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Yesterday, the Senate Committee on Commerce, Science & Transportation voted to approve S. 2045, The Consumer Product Safety Commission (CPSC) Reform Act of 2007. This bill will revamp the  federal standards on consumer products and will incorporate whistleblower language that protects employees who speak out on consumer safety violations against their employers. Once passed, this new law would prohibit manufacturers, distributors, and retailers from retaliating against employees who report violations of consumer safety laws.

Stephen M. Kohn, President of the National Whistleblower Center, states "Whistleblower protections for employees who report violations of consumer product safety standards are absolutely critical. If courageous employees can't report violations without fear of retribution, especially in overseas factories, then the American people may not know about dangerous or defective products until it is too late".

Leaders and supporters of the Government Accountability Project (GAP) are among the group of supporters of  S. 2045, the Consumer Product Safety Commission Reform Act of 2007. The GAP Legislative Director, Adam Miles, adds that "With the recent import scares and the holiday season approaching, adding consumer product safety protections to this list couldn't be happening at a better time." 

Mr. Miles and Mr. Kohn are absolutely correct in their assessment of the Bill. It is great to know that we have consumer and employee rights champions on such important issues.  There are two key Senators that need to be acknowledged for their efforts in this legislation,  Senator Claire McCaskill (D-MO) and Sen. Mark Pryor (D-AR). Their tireless and valiant efforts will help make a difference in the improvement in the CPSC and provide safety measures to protect Whistleblowers. According to Senator McCaskill,  “We may get the lead out of the whistles, but if we don’t protect the people that are blowing the whistles, we’re not going to get the information we need”.

The next step is to get the S. 2045, the Consumer Product Safety Commission Reform Act of 2007 passed by the entire Senate.  All eyes are on the Senate.

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Let your voice be heard by your Senator. Choose Kids Over Big Business! 

Please stand up and be counted by contacting your local Senator about this important issue. We want to share the recent letter by the Public Affairs Director of the National  Whistlebower Center urging concerned citizens to contact their local Senator. 

Click Here to find your local Senator

Would you want to know if a cargo ship full of lead-laden toys or toxic toothpaste were heading for U.S. ports and our stores? Protecting our children from defective or dangerous products depends on information provided by whistleblowers. Under current laws, a manufacturing employee who reports unsafe products is not protected from employer retaliation. A bill in the Senate, S. 2045, would protect these whistleblowers--but Big Business has declared war on the new law, and is fighting for the power to fire honest employees at will.

As you are well aware, defective and dangerous products have sickened our children and put us all at risk. The Senate Commerce Committee is set to vote on this legislation next Tuesday, October 30, and lobbyists (such as the National Association of Manufacturers) are lining up to voice their fervent opposition.

Perhaps the manufacturers should take a look at a new study conducted by Price Waterhouse which showed, once again, that whistleblowers are a company's #1 resource for upholding high standards. The study, available at http://www.pwc.com/crimesurvey/index.html, which included 5,400 corporate executives in 40 countries found that whistleblowers are over twice as effective as the companies' own auditors.

Big Business has fired the first shots; we must Fight Back. Whistleblower protections for manufacturing employees are indispensable, especially for those overseas. Without one honest manager, auditor or inspector in those far-flung factories who is willing to speak up without fear of retribution, we may not know about a defective or dangerous product until it is too late.

The bill is S. 2045, and it is being voted on by the Senate Commerce Committee Tuesday, October 30. We can win this fight, but not without an overwhelming response from determined citizens like you.

Sincerely,

Marshall Chriswell
Public Affairs Director
National Whistleblower Center

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According to a recently unsealed qui tam suit, several major insurance carriers are being charged with over-billing the government for Hurricane Katrina damage in Louisiana. In this suit, a group of former insurance adjusters, gave compelling evidence that they personally reinspected over 100  properties with flood and wind damage. In every instance, the federal flood program was overcharged for storm damage, while underestimating wind damage claims.

The suit has been under seal in the in U.S. District Court in New Orleans since it was filed last August. A  qui tam or whistleblower suit, filed by a private individual on behalf of the government, is automatically placed under seal for a period of time. Government prosecutors investigate the evidence and determine  whether they want to take it over.

In this whistleblower suit, Judge Peter Beer, unsealed the suit and cited the  the defendants for "defrauding " the U.S. government and violating the False Claims Act by knowingly submitting fake Katrina damage bills to the government for payment. While insurance companies "maxed out or nearly maxed out" flood policies from the Federal Emergency Management Agency, they "substantially underpaid" payments for wind damage at the same properties.

"Rather than follow in good faith the streamlined procedures that FEMA had set up, defendants instead systematically adjusted, paid and submitted reimbursement claims to NFIP regarding losses that obviously should not be covered by flood policies. They did so in massive quantities," the complaint reads. "Defendants defrauded NFIP by misattributing wind damage and other non-flood losses to the flood policies underwritten by the Government rather than correctly attributing such losses to causes that are covered by their homeowners policies."

There is an estimate of $9.24 billion being discussed as a possible amount that the flood program was overpaid in Louisiana from Katrina and Rita flood damage.  

All eyes are on Louisiana to see how this qui tam case develops.

Click Here to read more about this in the Louisiana Times Picayune.

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The Industry giants that control 90% of the $15 billion Orthotics Industry, are rumored to be close to a settlement for defrauding the government and taxpayers. They are accused of illegally paying surgeons to use and promote their products. The major players that control this industry are: DePuy Orthopaedics,  Zimmer Holdings Inc. and Biomet Inc., Stryker Corp., and Smith & Nephew PLC.

Although there are no allegations that  patients were jeopardized,received poor products or services, the prosecution contends the money that was given to the doctors had the sole purpose of buying loyalty for specific products and the doctors did not mention this to their patients. If these allegations prove to be true, it will be a violation of anti-kickback statutes for hospitals and health professionals who participate in Medicare.

Settlements are rumored to be in the hundreds of millions, which is only a fraction of the revenue for this robust industry.  As Brian F. LaBovick, Esq. mentioned previously on this whistleblowerlawblog, "I am often suspicious that if they "settled" for $100 million dollars  they must have made $500 million in their fraud", it makes you wonder if the settlement should be higher.

Money received in the settlement will likely go back to Medicare for the over payments. Hopefully, the whistleblowers (relators) will share in this reward.

Click Here to read more from Health Decision.org

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Recently the The Kansas City, Mo., School District came under fire for making false claims and statements regarding the Federal E-rate program from 2002-2006 according to the  has agreed to  the Justice Department. The school district has agreed to give up more than $13.6 million in claims for federal money and to pay the United States $66,000 as a civil settlement to settle the false claims  regarding the Federal Communication Commission's E-Rate program.

“The E-Rate Program makes federally mandated funds available to the poorest schools in the nation for Internet access and wiring,” said Peter D. Keisler, Assistant Attorney General for the Civil Division. “False claims to this very important federal program will not be tolerated.”

The United States learned of the allegations settled by Kansas City School District when a relator, American Fiber Systems Inc., filed a qui tam or whistleblower action in May 2006. The settlement resolves both the relator’s and the United States’ claims against Kansas City School District.

This case shows their is no discrimination where justice is concerned. The government will prosecute any organization for fraud. Three cheers for the relator, American Fiber Systems for helping to uncover the fraud.

Click here to read more from the Department of Justice and from the Kansas Business Journal.

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Dear Whistleblower Law Blog Loving Readers:

I know I write some pretty tongue in cheek messages, however, there are serious issues going on in the world that simply are so numerous and so grand in scope that the individual American doesn't know how to keep up or how to help out. Today one of those issues has popped up. Here is the issue: The Atlas Corp. owns a uranium tailing pile in Moab, Utah. Don't tune out, Moab, Utah is going to be important to you, stay with me. There is about 10.5 million tons of uranium mill waste which includes 426 million gallons of contaminated liquid waste seeping from the unlined site. The site is about 130 acres and has groundwater the feeds the Colorado River with radioactive waste and other toxins. Lets put aside the fact that 25 million people use the Colorado for their drinking water and that the Uranium content in groundwater near the Moab site is 530 times too high and just concentrate on the solution right now.

The Project on Government Oversight did a report on this in 1999. At that time the problem was terrible, but the solution was found. The Department of Energy (DOE) originally projected that the site would be cleaned up by 2011. BUT, the Dept. of Energy now wants to permit them to extend the clean up date by a 17 years. That means the site will continue to leech toxins and radioactive waste into the Colorado until 2028. The Oak Ridge National Lab's 1998 report said that even if the first Atlas plan is implemented the radioactive waste will continue to contaminate the Colorado River for another 270 years.

This is simply wrong. They had 11 years to fix the site. The fact that Atlas is using bankruptcy as a means to escape responsibility is not a viable rationale for the government to fail in finding a solution for the benefit of its citizens. Today you can help force a solution.

Here is what we ask: Find your elected official and write them. Tell them to support Representative Jim Matheson's (Democrat from Utah) amendment to the Energy bill which will support the quick clean up of the Moab site. If we do not speak up today the amendment will be overlooked.

You can find your  elected official at the POGO web site by clicking here: www.http://ga6.org/pogo/leg-lookup/search.tcl

Thanks,
Brian

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The wheels of justice turn slowly, but when they come around the effect can be crushing. I love it. A plus $100 MILLION verdict (against Bill L. Harbert construction companies) . Ok, we hear about the $100 million plus settlements, but I am often suspicious that if they "settled" for $100 million dollars that they must have made $500 million in their fraud. That, of course, only means the fraudulent jerks win the battle of litigation. But, then you get the VERDICT. Well, as a trial attorney, the word verdict just turns me on. I simply can't help believing that justice was served. So, cheers to Keith Morgan and Carolyn Mark the prosecutors on the case. From an ex-federal prosecutor, now, self acclaimed Civil Justice Prosecutor (which really just means a guy who likes to bring scamming corporations to justice), to a standing AUSA, hats off to you and the great work you both must have done to achieve that fine result.

I hope every paper in the country covers this news, but from what I have read in my local paper, it was simply swept under the rug. Who really cares about $100 million in fraud that was just recovered for the taxpayer anyway. There is a delicate balance in the world between all the criminals and all those seeking to stop this type of crime. Mr. Morgan and Ms. Mark are on the right side that scale and I just like letting the world know about them. Ok, I am stepping off my soapbox now. Good night.

Brian

Click Here to read the Birmingham News Article - May 15, 2007

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We are pleased to announce that Brian F. LaBovick, Esq. will be featured on Law Talk online which can be accessed at www.Radiopalmbeach.com Monday evenings from 7pm - 8pm EST.

Attorney LaBovick will cover Qui tam - False Claims Act issues and verdicts along with other breaking legal news that affect consumer rights.

Tune in on your computer by going to www.Radiopalmbeach.com and join in the discussion by calling in or emailing questions.  If you have a question beforehand that you want aired during the show, you can submit them to info@labovick.com prior to the show.

 

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Monday begins the kickoff of the Washington Whistleblower Week, which runs from May 14 - May 18. The Government Accountability Project (GAP), 45 national public interest groups and hundreds of whistleblowers from around the country will be in Washington for this event.

We will share the latest news from Washington with you on this site:  ww.whistleblowerlawblog.com

Stay tuned for major decisions and discussions from key players on new whistleblower legislation.

Click Here for more information from the Government Accountability Project (GAP) on a listing of events.

 

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The Loma Linda Behavioral Medicine Center in Redlands has paid the government more than $2 million to settle allegations that it fraudulently overbilled federal health insurance programs. The government received notice that a federal judge had unsealed allegations against Loma Linda BMC contained in a "whistle blower" qui tam lawsuit.

The qui tam settlement - includes interest -resolves allegations made against Loma Linda BMC in a lawsuit filed pursuant to the qui tam provisions of the False Claims Act. The qui tam lawsuit  was filed in 1998 by a former employee of Health care Financial Advisors (HFA). The lawsuit alleges that HFA helped its hospital clients seek reimbursement for unallowable costs.

The Loma Linda BMC qui tam settlement is the latest in a series of settlements with defendants in the suit. Last year, Jackson Memorial Hospital in Miami paid more than $14 million and St. Elizabeth Regional Medical Center in Lincoln, Neb., paid more than $4 million to settle qui tam allegations that they had failed to disclose and return overpayments made by the Medicare and state programs.

Click Here To Read about the case in the Corporate Crime Reporter and Redlands Daily Facts

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The Department of Justice filed papers indicating that the government may want the $7.5 million  dollars the jury said was defrauded from the government by Kerr-McGee.

The DOJ requested that Judge Figa to not enter a judgement of dismissal in the case for 30 days while it takes time to consider whether or not to intervene.

“The Supreme Court has instructed that where a court dismisses a relator because he is not an original source, the court nonetheless retains subject matter jurisdiction if the United States intervenes,” government attorneys argued. “Thus, if the United States intervenes in this case, the court will retain jurisdiction despite its March 30, 2007 order that it lacks jurisdiction over Maxwell’s allegations.”

Attorneys for Maxwell filed papers with the court arguing that the jury’s verdict belongs “to the United States of America.”

Attorney Robert Christensen's blog makes an interesting point, when he states in his blog post "that It should not come to anyone's surprise that our government is oftentimes too close to the industries it is regulating. And that many regulatory agencies are run and staffed not by regulators but industry profiteers. Time will tell, how the course of events will play out in this case Uniter Sates v. Kerr-McGee. Keep watching.....

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Judge Phillip Figa, a federal judge in Denver, overturned a jury verdict in favor of Bobby Maxwell, a whistle-blower at the Interior Department who charged that the Kerr-McGee Corporation cheated the government out of millions of dollars for oil and gas it pumped in publicly owned coastal waters.

According to a Denver Post article citing the ruling, Kerr-McGee's attorney, Scott Barker  "Judge Figa's order is a vindication of Kerr-McGee's position from the very outset of the case. This result is especially appropriate since ... Kerr-McGee had properly and fully paid all the royalties that were due." Bobby Maxwell's attorney, Richard LaFond states "They will definitely appeal. A jury determined in January that Kerr-McGee underpaid $7.6 million. With additional fines and penalties, Kerr-McGee was liable for up to $39 million in damages, according to LaFond.

The ruling could have big implications for whistle-blowers, as well as for the oil and gas industry. According to a New York Times  article (subscription required), three other federal auditors in Oklahoma City have filed similar fraud lawsuits against more than a dozen oil companies; those auditors also say that they were ordered by superiors to stop making their accusations. 

Continue Reading...

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The federal government brought suit against the Menominee tribe 's business arm, alleging it falsely billed the Bureau of Indian Affairs for fire suppression and roadwork while spending more than $1 million for unauthorized purposes.

It seeks triple the amount of the damages, as well as civil fines, fees and costs under the False Claims Act. It didn't elaborate on a total dollar amount for its five claims but seeks a jury trial because of the alleged breach of contracts.

Click Here to Read more details on the story in the Wilwaukee Journal Sentinel

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There are a million ways to rip off the government. That is why the Qui Tam law’s (Federal False Claims Act) language is so broad. Yesterday I blogged about an HMO getting slapped with a huge verdict and penalty for ripping off Medicaid, last month I was upset by defense contractors posting ghosts instead of, and today I am blogging about a road contracting company which failed to follow the government regulations on hiring disadvantaged business entities.

What happened here is that two construction companies were awarded government contract to perform road work. As a part of the award the construction companies promised to hire disadvantaged business entities (DBEs) to do the work. What are DBEs? DBEs are businesses are owned by minorities, women, or socially or economically disadvantaged people. The purpose here is to get more people to enter the road construction industry.

Continue Reading...

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A former executive at Keyspan is allowed to proceed with a whistleblower lawsuit in federal court. His lawsuit charges that he was fired by Keyspan in retaliation for bringing allegations of accounting errors and possible financial fraud involving millions of dollars to the attention of  executives at the company.

Judge Sterling Johnson Jr., Eastern District of New York,  denied KeySpan's request for summary judgment.  "This Court will defer to a jury's judgment [as to] whether Defendant [has] establishe[d] by clear and convincing evidence that Plaintiff's termination was non-retaliatory," Johnson said in Mahony v. Keyspan, 04 CV 554

The judge did not rule on the validity of the whistleblower's underlying accusations.

Read more about the developments in this case in a recent New York Law Journal article.

 

 

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According to recent findings in an audit by the Justice Department,  the FBI improperly used the USA Patriot Act to obtain personal information about people in the United States.

The FBI Director, Robert Mueller, takes full blame for not putting more safeguards into place. He promises to correct the problems and does not plan to resign.

Click Here for Article on Law.com to read more on the Justice Department's findings.

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The Department of Justice filed a Civil False Claims Act lawsuit against two principals from a company for fraudulently obtaining loans and grants from federal agencies after the September 11, 2001 terrorist attacks in NYC.  The accused claimed their executive search firm had leased property and maintained equipment at 2 World Trade Center when, in fact, the company never had operatios in this location. The suit seeks a judgement of $918,000, plus penalties. They were both found guilty and convicted for federally related criminal charges.

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The House Oversight and Government reform Committee approved landmark legislation to overhaul the law protecting federal government whistleblowers.  H.R. 985 "The Whistleblower Protection  Enhancement Act of 2007" was approved with a unanimous vote of 28-0. This is truly a a successful joint effort on behalf of the committee. Hopefully the House will come together and pass this necessary legislation without delay. This is of course after the Leadership brings this to floor for a vote.

Click Here for More from the Government Accountability Project

 

   

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