The False Claims Act. Good law. Bad law.
Depends on which side you are on.
Sharon Finegan is an associate professor of law at South Texas College of Law in Houston.
In a 2007 paper titled The False Claims Act and Corporate Criminal Liability: Qui Tam Actions, Corporate Integrity Agreements and the Overlap of Criminal and Civil Law, Finegan argues that the False Claims Act is “rife with problems that stem from the overlap of criminal and civil law generated by the statute,” the law “fails to safeguard the rights of corporate defendants in FCA actions,” and that Congress should return “the burden of proof to the clear and convincing standard in place prior to the 1986 amendments to the law and require greater government oversight of qui tam actions.”
Patrick Burns is with Taxpayers Against Fraud.
He takes issue with Finegan’s analysis.
“Sharon Finegan has decided that a lot of things about the False Claims Act are ‘problematic,’ but she never quite tells us who they are problematic for,” Burns told Corporate Crime Reporter last week.
“To be clear, if health care defendants want to change the law, they have lobbyists enough, and if they want to challenge the law in court, they have lawyers enough. Who knew truth to suffer in a free and open debate?”
“In fact, there are no real problems with the False Claims Act,” Burns said. “Finegan presents contrived concerns manufactured whole cloth, and the article does little more than illuminate her own shaky understanding of the fundamentals of False Claims Act litigation.”
“The simple fact is that over $40 billion has been recovered to the federal government and the states under the False Claims Act, and at least $3 billion of this sum has been recovered in cases where the federal government initially declined to intervene but later reversed, or stood to the side while states joined the cause.”
“This is exactly as the authors of the False Claims Act intended, as qui tam litigation is designed to keep government small and efficient.”
“While Ms. Finegan writes as if there are no barriers to moving forward with a declined qui tam case, this is simply not true,” Burns said. “Whistleblowers in declined cases can only proceed with the assistance of a lawyer, and an experienced False Claims Act lawyer will only take a case if they feel reasonably sure they can win in court, as most False Claims Act lawyers work on a contingency basis.”
“In addition, under the False Claims Act, a complainant can be required to pay the defendants attorney’s fees if the court finds that the claim was frivolous or brought primarily for purposes of harassment.”