According to a recent press release (a copy is here), almost half of the largest 50 companies in the United States (by 2014 numbers) have settled claims under the False Claims Act in the past. Beyond the very largest companies, about 20% of the country’s Fortune 500 companies (again, as determined by 2014 numbers) faced allegations under the False Claims Act at one time or another.
These statistics suggest several trends and issues under the federal False Claims Act.
First and perhaps foremost, these statistics should be a cautionary tale for all companies that receive money from the federal government in any form or manner. Litigation under the False Claims Act is exploding—the American Bar Association has said that False Claims Act suits are the fastest growing type of federal litigation. Recent amendments to the False Claims Act have made bringing lawsuits easier and dismissing them harder. Companies that do a substantial amount of work for the federal government must redouble their compliance efforts and take measures to uncover internal practices that could be considered fraudulent. Companies should identify particular areas in their work for the government that could expose them to liability under the False Claims Act—particularly the information they provide the government as part of their work—and ensure that that they are complying with contractual and regulatory requirements in all material respects.
Second, these statistics suggest that the False Claims Act is becoming an increasingly popular vehicle for the government—and relators—to police the conduct of recipients of taxpayer money. According to Department of Justice statistics, last year (2013), 15% more qui tam lawsuits were filed than the year before (2012). Potential defendants and their counsel should expect more lawsuits under the False Claims Act in the next few years and should be thinking about ways both to avoid and minimize liability. There is no substitute for carefully developing and implementing an internal compliance program and creating a corporate culture that encourages whistleblowers to report internally and supports those that do.
Conversely, the relators’ bar should read these statistics as an indication that there are many more potential whistleblowers out in the world who simply need to find the right lawyer who understands the value of the information they possess and how to use that information to the government’s advantage. These statistics should encourage relators’ counsel to invest more time and energy to identify and locate whistleblowers whose concerns have not been taken seriously by the companies they work for.
Finally (for this post), these statistics confirm the observations of many that the False Claims Act is being applied in novel ways, to cover new types of conduct, and is being applied with more frequency in these new fields and new areas. The False Claims Act is a flexible remedial statute, and relators and their counsel are always discovering new ways to apply the Act to cover conduct they find objectionable.