What’s on tap for Whistleblowers in 2016?

Whats on tap for whistleblowers in 2016?For the 2015 fiscal year, the United States Department of Justice reported that whistleblowers helped the government recover more than $3.5 billion for the fourth year in a row, bringing the total recoveries from January 2009 to the end of the fiscal year to $26.4 billion.

While this amount is down from the 2014 record of $5.7 billion, the amount of rewards given to the whistleblowers who brought the cases increased by almost $100 million, which is obviously an encouraging sign for potential relators.

Another interesting note, for the first time ever, declined cases resulted in a higher amount of whistleblower rewards than intervened cases — a sign that more law firms are willing to take cases forward without the government’s assistance and that whistleblowers are being appropriately rewarded for their efforts.

So after another successful year for False Claims Act cases, what’s on tap for 2016?  Here are a few things that we will be watching:

  • What will be left of the Public Disclosure Bar?  2015 brought us a series of cases narrowing the Public Disclosure Bar’s effectiveness in halting whistleblower lawsuits.  In August, the Ninth Circuit Court of Appeals issued an important ruling for whistleblower lawsuits, reversing 23-years of bad law pertaining to what a relator must prove to overcome the Public Disclosure Bar.  The ruling removed a third prong that required that whistleblowers show that they had “a hand in the public disclosure.”  Since Public Disclosure Bar issues are so fact-intensive, it’ll be interesting to see what issues will be presented and if the courts will continue to narrow the Public Disclosure Bar’s breadth.
  • How will the Yates Memo be enforced? The September memorandum from Deputy Attorney General Sally Yates encouraged her colleagues to hold individuals accountable for corporate wrongdoing.  The memo leading to more criminal consequences could have a variety of effects on whistleblower cases ranging from lengthening their duration as the whistleblowers have to wait until the criminal component is concluded to proceed on the civil side to increasing settlements as executives seek to avoid personal repercussions by returning more money to the government.
  • What will the Supreme Court do about implied certification? In early December, the Supreme Court accepted the case of Universal Health Services Inc., v. Escobar, 780 F.3d 504 (1st Cir. 2015) cert. granted in part, No. 15-7, 2015 WL 4078340 (U.S. Dec. 4, 2015). The case will allow the Court to determine whether defendants can be held liable by whistleblowers for when they implicitly certify compliance with all laws, regulations, and contracts each time they submit a claim for payment. Oral argument is expected for the Spring of 2016.

As always, feel free to contact us with any questions you might have about the False Claims Act or whistleblower law in general.

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