Inside the Plaintiffs Bar: How Plaintiff Counsel is Selecting and - - PowerPoint PPT Presentation

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Inside the Plaintiff’s Bar: How Plaintiff Counsel is Selecting and Litigating Big Ticket Qui Ta m Cases

Key Factors in Evaluating Cases

 Relator’s knowledge and credibility  FCA theory of liability  Damages and recoverability  Public interests to be vindicated  Potential road blocks, e.g., relator involvement,

public disclosure

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Evaluating the Relator

 What is/ was relator’s relationship with defendant/ s and

source of knowledge?

 Employee/ seniority  Customer/ consumer, e.g., doctor, pharmacy, HMO, patient  Competitor  Vendor, e.g. consultant

 How extensive is the relator’s knowledge, e.g., expertise

in industry, seniority in company?

 Credibility

 Can the relator clearly explain the fraud?  Will the relator make a good witness?  What motivated the relator to come forward?

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Other Considerations

 If an employee:

 Did the relator report the fraud internally?  Is the relator still employed at the company?  If not, did the relator sign a severance agreement?

 Did the relator report to the government?  Did the relator report promptly?  Is there more than one relator? Multi-relator

representation issues.

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Evaluating the Case

 FCA analysis:

 What is the theory of liability?  Which jurisdiction is best?  Elements of liability, e.g., false certification  Rule 9(b), public disclosure, first to file  Damages theory  Choice of USAO  Public interests to be vindicated, e.g., patient harm, military

personnel at risk, policy considerations

 What will the agency say?

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What evidence does the relator have?

 Documents

 But we don’t want to see anything that is:  Privileged  Accessed without authority  Random (e.g. a data dump of all of the company’s files)

 Relators make tapes!

 But make sure that recordings were made lawfully  Determined by state law, e.g. NY is a one-party consent state  See “Tape-recording laws at a glance,” Reporters Committee

for Freedom of the Press http:/ / www.rcfp.org/ reporters- recording-guide/ tape-recording-laws-glance

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What other evidence might be available?

 Witnesses the government should

interview/ documents the government should subpoena?

 Consider prefiling investigation  Will the relator be able to help the government

interpret additional information?

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Potential Roadblocks

 Need to satisfy FRCP 9(b) and 11: sufficiency of

evidence

 Has someone else already filed a case?  Is there a public disclosure concern?

 E.g. other cases, government reports, news media

 Was the relator involved in the fraud?

 Relator may have criminal exposure—should have the relator

get advice from a criminal attorney

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Additional Questions

 What employment issues is the relator facing?

 Possible Sec. 3730(h) retaliation claim

 Is this the right legal remedy for the relator?  Potential consequences for the relator —

professional and personal

Getnick & Getnick LLP