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Article
THE FALSE CLAIMS ACT CREATES A 'ZONE OF PROTECTION' THAT BARS SUITS AGAINST EMPLOYEES WHO REPORT FRAUD AGAINST THE GOVERNMENT
Drake Law Review (2014)
  • Joel D Hesch, Liberty University
Abstract
May employees copy internal company documents and turn them over to the U.S. Department of Justice as part of applying for a whistleblower reward for reporting fraud against the Government? This is one of the most hotly contested issues facing whistleblowers and employers, and the answer will affect the future of the Government’s primary whistleblower reward program. Each year, companies are cheating the military and Medicare by billions of dollars. To combat fraud, Congress enacted the federal False Claims Act (FCA), which is the primary anti-fraud tool used by the Department of Justice (DOJ) and the fastest growing area of federal litigation. A unique and particularly effective component of the FCA is the qui tam provisions, which allow a private person to bring a lawsuit, known as a qui tam suit, on behalf of DOJ against companies accused of cheating the government. So far, whistleblowers have recovered for the Government over $35 billion in qui tam cases, and received rewards of $4 billion. In response, employers have begun filing counterclaims against its whistleblower employees who secretly copy company documents to give to the Government, including claims of breach of contract and a host of tort claims, such as conversion, libel, tortious interference with contracts, and malicious prosecution. Therefore, courts are increasingly being asked to balance the interests of the Government, the relator and the company under a wide variety of situations stemming from employees copying internal company documents for use in filing a qui tam case. Unfortunately, due to a lack of a proper framework, court rulings are inconsistent regarding whether to permit or dismiss state law counterclaims against federal whistleblowers. With the threat of damages hanging over whistleblower’s head, many potential future whistleblowers are unlikely to risk reporting fraud against the Government. The core problem is that no court has examined all of the relevant FCA provisions and policy implications in sufficient detail to determine whether and to what extent the FCA creates federal privileges or protections for federal whistleblowers. This Article balances the competing interests and takes the position that six key provisions of the FCA demonstrates both “substantial public interests” and “unique federal interests” in protecting employees filing FCA qui tam cases, and therefore federal law should apply. Next, it defines the level of protections flowing from the substantial public and federal interests, which are referred to as the “zone of protection.” Finally, this Article guides the courts through the application of the zone of protection to a series of complex and difficult scenarios.
Keywords
  • False Claims Act,
  • whistleblower,
  • whistle blowing,
  • qui tam,
  • report fraud,
  • zone of protection,
  • whistleblower reward,
  • reporting fraud against the Government,
  • whistleblower protection
Publication Date
Winter April, 2014
Publisher Statement
The Bluebook citation for this Article is as follows: Joel D. Hesch, The False Claims Act Creates a "Zone of Protection" That Bars Suits Against Employees Who Report Fraud Against the Government, 62 DRAKE L. REV. 361 (2014).
Citation Information
Joel D Hesch. "THE FALSE CLAIMS ACT CREATES A 'ZONE OF PROTECTION' THAT BARS SUITS AGAINST EMPLOYEES WHO REPORT FRAUD AGAINST THE GOVERNMENT" Drake Law Review Vol. 62 (2014)
Available at: http://works.bepress.com/joel_hesch/5/