Filing a False Claims Act Complaint: Does Motivation Matter?

ascudieri

Al Scudieri – James Hoyer Chief Investigator

For the past 35 years, I have been working with False Claims Act whistleblowers (also known as “relators”) first as an FBI agent and later as the Chief Investigator for the James Hoyer law firm.  I have found that relators can be just about anyone:  doctors, public servants, mechanics, accountants, investigators, members of the military, clerical personnel, CEOs, reporters, nurses, engineers – in short, anyone who has knowledge that the government is being cheated.

When complainants contact me, they often ask the same questions, one of which is: “Will my motivation matter to the government?”  Here are a few insights I have shared in response:

Why are you coming forward?

Generally speaking, relators are responding to one or more of four essential motivations: profit, moral outrage, self-protection, and revenge.  Although some motivations may be regarded as more palatable than others, if the relator’s facts and proof are solid, then the motivation for coming forward is often of little consequence to the government.  Nevertheless, when relators are deciding if they should file a False Claims Act (“FCA”) complaint, it is of value for them to come to terms with their motives.

Profit

Since successful relators stand to receive a reward of anywhere between 15% and 30% of government FCA recoveries, there is an assumption most relators are “in it for the money.”  Empirical research has shown this is not necessarily true. [1]   In fact, this research indicates although profit can be a significant motivating factor, the majority of successful FCA relators are principally motivated by a sense of moral outrage.

Moral outrage

Many relators possess a heightened sense of integrity and are truly disturbed by their discovery of unethical behavior.  They come forward with no other motivation than that of concerned taxpayers.  I find that relators in the health-care arena are generally more concerned with the impact of fraudulent behavior on patient safety than any potential monetary reward.  Relators in the defense arena who detect fraud are often more concerned with the safety of our armed forces and the fraud’s impact on national security than they are with getting rich.

Self-protection    

Occasionally, relators are willing to give the benefit of the doubt to the perpetrators of fraud and choose to assume the improper conduct they discovered may be inadvertent.  They believe corrective action will certainly be taken based upon complaints filed through proper internal channels.  Before contacting me, many relators have pursued this course of action – often to no avail.  To their surprise and disappointment, management may even have retaliated against them for merely raising legitimate concerns.

In other cases, employees are worried that sometime in the future, a finger may be pointed at them as being responsible for the improper conduct.  They feel it would be better to go on record with a preemptive complaint setting the record straight than to one day receive a knock on the door from investigators accusing them of wrongdoing.

Revenge 

In some cases, relators come to our law firm after already having lost their jobs when they raised concerns about improper conduct.  These individuals quite rightly resent that they and their families are being punished for having done the right thing.

I have also seen a number of cases wherein business owners contracting with government agencies want to report wrongdoing by competitors who gained an unfair advantage by engaging in fraud.  These relators are not only morally outraged, but also resent the negative impact of this conduct on their businesses.

Conclusion

No prospective relator should ever feel their motivation is insufficiently worthy to justify the filing of an FCA complaint.  However, such concerns should be discussed with the relator’s counsel during the initial consultation period.  The simple fact is, we are all motivated by something – and the government (which plays a major role in the success or failure of any FCA case) is well-aware of that fact.  During the initial meeting with the relator, government attorneys will almost always explore the issue of motivation as it helps place the relator’s complaint in the proper context.  Since the filing of an FCA complaint can be the beginning of a lengthy partnership between the government and the relator, it is incumbent upon relators to reach an honest determination as to their motivation and be prepared to share that information with their attorneys and the government.

If you believe you have information regarding fraud against the government and are considering bringing a False Claims Act case, please contact James Hoyer for an evaluation of your claims.  Click here for more information about the firm and to submit your information electronically, or you may contact our office at 813-397-2300.

Written by Al Scudieri


[1] Kesselhim, “Whistle-Blowers’ Experiences in Fraud Litigation Against Pharmaceutical Companies 362:19 NeJM 1832-34, 2010.

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