You read in the news that your employer – perhaps a pharmaceutical company, a financial institution, or a defense contractor – just settled a False Claims Act case with the United States government for hundreds of millions of dollars. Having just paid out a handsome sum, and with the government on high alert, you expect that things will change for the better and the fraud will be put to an end. Unfortunately, that is often not the case.
Some of the biggest companies in the world have been caught picking the pockets of the American taxpayer over and over again, engaging in various schemes even as they settle one. And so we get a lot of calls from people who see the settlement in the news, but know firsthand that their employer has not corrected its wrongful ways. So what can you do about it? The big question is whether the fraud you wish to report is the same as the fraud that was just settled.
If the conduct is unrelated to the settlement, then you may have a brand new qui tam case. A zebra is unlikely to change its stripes, and so we have litigated multiple FCA actions against a single entity at one time, covering various projects, contracts, and departments with no or minimal overlap. Just because the government is aware of one scheme does not mean it is aware of all the schemes, and just because one fraud has been caught and punished does not mean a company won’t continue to engage in other types of fraud.
If the fraud is the same as what was just settled, then you may need to wait and see what happens next. It is not unusual for a company to engage in misconduct right up until the date of settlement, and to include that conduct in the settlement agreement. This means that the fraud you have been witnessing is “covered conduct” – no new case can be brought alleging fraud that has already been settled.
Moreover, it is likely that the corporation agreed to a Corporate Integrity Agreement (“CIA”) – for a time, it will have to report to the government or subject itself to government audits to prove that it is not still committing fraud. This can rarely be fixed overnight, and so the government may give the company time to make any necessary corrections.
As a result, the best thing you can do after an FCA settlement is to see if the company makes any changes to stop its bad behavior. If nothing is different after a month or two, then it’s time to consult with an FCA attorney.