d hargrove slides (sbot - advanced employment law cle jan. 2013)
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D Hargrove Slides (SBOT - Advanced Employment Law CLE Jan. 2013)TRANSCRIPT
Update on Whistleblowers in the Age of Stimulus
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Dan HargroveDan Hargrove
1. 2007 – 2011 (a sea change in the law)
1. Update on the False Claims Act
1. Update on the SEC Whistleblower Program
1. Update on the IRS Whistleblower Program
2. What’s new
1. What’s coming
Overview
Qui Tam actions by whistleblowers
Bounty Claims for whistleblowers
Protections for Whistleblowers
2007 – 2011 A SEA CHANGE IN WHISTLEBLOWER
LAW
1. IRS Whistleblower Program created
1. False Claims Act strengthened
1. SEC Whistleblower Program created
1. CFTC Whistleblower Program created
1. Other laws (Dodd-Frank; PPACA; Federal Acquisition Regulation)
2. The Texas Medicaid Fraud Prevention Act strengthened
2007 – 2011
Step 1: The FALSE CLAIMS ACT
Qui Tam
Update on The False Claims Act
What is a Qui Tam Action?
Spotting Qui Tam Cases
Mischarge case:
Doctor bills Medicare for services not actually provided
Spotting Qui Tam Cases
False negotiation:
Contractor bribes government contracting officer to obtain contract
Note: pecuniary harm to the Government is not necessary
Spotting Qui Tam Cases
Fraud Enforcement and Recovery Act of 2009 substantially strengthened the False Claims Act
PPACA loosened the standard who can act as a qui tam relator
Changes to the False Claims Act
2012 WAS A BANNER YEAR FOR THE FCA
BUT THERE ARE STORM CLOUDS ON THE FCA HORIZON
Pattern of federal judges denying DoJ motions to extend the seal period
United States v. Caronia, No. 09-5006 (2d Cir. Dec. 3, 2012) (holding by 2-1 that truthful, non-misleading off-label promotion is constitutionally protected commercial speech)
Update on The Bounty Laws
The IRS Whistleblower Program (Bounty)
Bradley Birkenfeld, a whistle-blower in the tax evasion case against Swiss bank UBS AG, holds a news conference outside the Schuylkill County Federal Correctional Institution in Minersville, Pa., Friday, Jan. 8, 2010, before reporting to the federal prison.
PROPOSED CHANGES TO THE IRS WHISTLEBLOWER PROGRAM
Fed. Reg. Vo. 77, No. 243 (Dec. 18, 2012)
Comments due Feb. 19, 2013
Amended regs would provide guidance:
on submitting claims;factors on payment of awards;the processing of whistleblower claims; andwould authorize the IRS to share tax
information with the whistleblower.
The SEC Whistleblower Incentive Program (Bounty & Whistleblower Protections)
RESULTS OF THE SEC WHISTLEBLOWER PROGRAM
The SEC paid its first bounty claim ($50,000)
The SEC posted 143 Notices of Covered Action in FY 2012
The SEC received 3,011 Tips and Complaints FY 2012
Another Whistleblower Law Enacted
Whistleblower Protection Enforcement Act(amends the WPA)
Expands protection for Government whistleblowers
Protects government scientists who challenge censorship
Provides all-Circuit review (two-year experiment)
Establishes explicit whistleblower protections for TSA employees
Provides compensatory damages for prevailing whistleblowers who prevail after an admin hearing
Makes it easier for OSC to discipline retaliators
What’s on the Horizon
CRIMINAL ANTITRUST ANTI-RETALIATION ACT (CAARA)
Would amend THE ANTITRUST CRIMINAL PENALTY ENHANCEMENT AND REPORT ACT
Would extend whistleblower protection to employees of companies engaged in criminal antitrust conduct
Would protect an employee who reports to the U.S. DoJ Antitrust Division a violation of the antitrust laws (reasonable belief)
CRIMINAL ANTITRUST ANTI-RETALIATION ACT (CAARA)
Would protect a whistleblower who reported other violations committed either in conjunction with an antitrust violation, or during an investigation by the Antitrust Division
Actionable retaliatory action would include discharge, demotion, suspension, threatening, harassing or discriminating in any other manner in the terms of employment
Employees involved in an antitrust or related violation are not protected
If you have questions . . .If you have questions . . .
