DOJ Criminal Division Renews Efforts To Investigate Whistleblower Allegations

John Irving and Timothy Belevetz are Partners in our Washington, D.C. office

HIGHLIGHTS:

Department of Justice Criminal Division Assistant Attorney General Leslie Caldwell announced a new process signaling a heightened effort to bring criminal prosecutors into the loop regarding False Claims Act referrals and other whistleblower complaints. This newly articulated policy highlights significant legal issues surrounding complex parallel civil and criminal investigations. The Department of Justice (DOJ) has signaled a heightened effort to bring criminal prosecutors into the loop regarding False Claims Act referrals and other whistleblower complaints. In recent remarks at a conference comprised primarily of plaintiffs' lawyers for whistleblowers, DOJ Criminal Division Assistant Attorney General (AAG) Leslie Caldwell announced the following:

"We in the Criminal Division have recently implemented a procedure so that all new qui tam complaints are shared by the Civil Division with the Criminal Division as soon as the cases are filed. Experienced prosecutors in the Fraud Section are immediately reviewing the qui tam cases when we receive them to determine whether to open a parallel criminal investigation."1 This newly articulated policy should get the attention of every government contractor, physician, hospital, nursing home and other healthcare provider billing Medicare or Medicaid, as well as companies doing business overseas and those regulated by the Securities and Exchange Commission (SEC). It also highlights significant legal issues surrounding complex parallel civil and criminal investigations.

The venue for AAG Caldwell's remarks was a conference for the "Taxpayers Against Fraud Education Fund (TAFEF)," which is largely funded by whistleblowers and their lawyers.2 The organization's mission, according to its website, includes working "to maintain the integrity and advance the effectiveness of whistleblower reward and private enforcement provisions in federal and state laws" and working to "advance public and government support for whistleblower cases."

While AAG Caldwell's announcement focused on False Claims Act qui tam lawsuits - wherein a private whistleblower files a civil enforcement action on behalf of the federal government, which then has the option to intervene - she also highlighted the Fraud Section's experience in a variety of whistleblower cases that are also a focus for TAFEF, such as the following:

The False Claims Act, 31 U.S.C. §3729 et seq., prohibits knowingly making (or causing someone else to file) a false claim to get the government to pay that claim. The act offers qui tam whistleblowers with up to 30 percent of the government's recovery funds and provides a private right of action to the whistleblower to pursue a case even when the government declines to do so. The act initially was intended to address fraudulent suppliers to the Union Army during the Civil War but is now used to...