The U.S. False Claims Act authorizes whistleblowers of any citizenship to sue to recover funding for a defrauded U.S. government agency or department. These complaints are originally filed confidentially, but may later become public. A whistleblower can qualify for a share in the eventual recovery of up to 30% of the returned funds. The promise of such recoveries enables law firms like this one to advance the cost of our whistleblower representation and advice so that whistleblowers pay nothing unless and until their case progresses to a financial recovery.
There are many kinds of False Claims Act lawsuits. When the law was passed, the U.S. Congress sought to address the problem of unsavory military contractors selling the army defective products, such as guns that did not shoot or boots made of cardboard. Today, many U.S. government agencies are doing equally important work based on the integrity of the products, services and research they pay for. While some contractors cheat the government by billing for no work at all, it is more common to appear to be fulfilling obligations while taking unlawful shortcuts. Examples include mental health services provided by unlicensed therapists, drugs prescribed by bribed doctors, medical procedures that are unnecessary or unsafe, and technological services or products that do not work as advertised.
In science, funding agencies sometimes award grants, or continue to pay out on grants, based on misrepresentations of the science or of other circumstances to the scientific research. Payments after the date of the misrepresentation count as having been obtained fraudulently. One important focus at my firm is to use the False Claims Act to address fraud in the scientific or medical literature that misleads federal agencies into awarding grants or other benefits for work that they might not otherwise choose to fund.
Do I have a case?
The False Claims Act requires us to show that the defendant made a claim for payment to the government, that was false, and recklesss.
To be false, a misrepresentation need not be an out-and-out lie or fabrication. In June 2016, the U.S. Supreme Court unanimously concluded that misleading half-truths can count as actionable false claims in United States ex rel. Escobar v. Universal Health Services, Inc.. This case defines the contours of civil fraud in the United States today. In a scientific fraud case, falsified data includes the presentation of data acquired in circumstances different to those described, the presentation of results omitting nonconfirmatory data, or the presentation of results that that the authors have good reason to know might have been a fluke or an artifact. Other grant fraud cases involve misrepresentations by PIs or institutions about their track records, methods, materials or equipment.
Reckless means that the defendant knowingly ignored a substantial risk of error. In scientific fraud cases, if we don’t have evidence of data fabrication, I look for evidence that the defendants have misrepresented necessary cross-checks, such as a control experiments or a replication data. Additionally, I also look for whether the defendant has misrepresented data or other circumstances of their experiments multiple times, or over several years. Or, that they have done so in a high-profile article or when applying for a large grant. In practice, I rarely file cases unless the whistleblower(s) and I believe that at least some examples of misrepresentation have to be intentional or knowing. If the evidence for deception turns out to be weaker than we thought, or is strongly disputed, we may still be able to show or agree on the misrepresentation being at-least reckless.
Presentment of the false information to government to induce funding is also a necessary component of a case. It is best to have access to the grant application, but we can sometimes draw reasonable inferences that a grant PI almost surely relied on a given article or claim in a grant application when we do not have it. Note that the use of grant funding to publish flawed data, reflected in the acknowledgment of a grant in a paper, may not qualify as a false claim, unless the paper was reported in an annual progress report or there was a subsequent grant application, such as a next-cycle renewal. But, it is sometimes possible to show that the generation of flawed data using a grant was misuse of funds.
Finally, for those scientists who have ended up coauthoring flawed manuscripts or part of a grant misdirected by colleagues, it’s worth noting that filing an FCA case triggers retaliation protection and places you on record as having spoken up. Making bad judgments in the past doesn’t prevent a person whistleblowing, especially if they were under pressure, misled about the extent of the flaws, or not the primary person responsible.
The above examples are only a guide. We are often able to satisfy the above elements of the FCA using evidence other than these examples, or identify investigative approaches that lead to such evidence after discussions. Conversely, the law has technicalities that may bar a case that is intuitively as deserving as another one that turns out to be viable. If you think you may have a case, it’s a good idea to reach out to me or another law firm before going public, or, if you have made some public disclosures already, to get in touch prior to publicizing further evidence.