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

Inside the Plaintiff’s Bar: How Plaintiff Counsel is Selecting and Litigating Big Ticket Qui Ta m Cases L E S L E Y A N N S K I L L E N A M E R I C A N C O N F E R E N C E I N S T I T U T E E X E C U T I V E F O R U M O N F A L S E C L A I M S A N D Q U I T A M E N F O R C E M E N T J A N U A R Y 2 7 , 2 0 1 4 N E W Y O R K , N Y G E T N I CK & G E T N I CK L L P 5 2 1 F I F T H A V E N U E N E W Y O R K , N Y 1 0 1 7 5 W W W . G E T N I C K L A W . C O M

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 Getnick & Getnick LLP

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? Getnick & Getnick LLP

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. Getnick & Getnick LLP

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? Getnick & Getnick LLP

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 Getnick & Getnick LLP

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? Getnick & Getnick LLP

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 Getnick & Getnick LLP

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