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David A. Koenigsberg

Partner
dkoenigsberg@mbkklaw.com
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Phone: (914) 949-0222
Fax: (914) 997-4117

1 N Lexington Ave #1550
White Plains, New York 10601

If You believe that you have information about a Fraud on the United States Or a State or Local Government Agency, contact the Leader of Our False Claims Act Practice, David Koenigsberg, Esq.

David may be contacted by phone (914) 949-0222 or by email at: dkoenigsberg@mbkklaw.com.

Please include your contact information in your email, but do not include any confidential or sensitive information by email.

About David Koenigsberg Almost a Billion Recovered

David Koenigsberg is the False Claims Act practice leader at Menz Bonner Komar & Koenigsberg LLP and during his career has represented relator-whistleblowers and the United States in cases that have resulted in government recoveries of almost one billion dollars ($1,000,000,000.00). David has been practicing law for 35 years and has been litigating False Claims Act cases for over 25 years, the last 19 years of which has been in private practice where he has focused his practice on representing relators in whistleblower litigation, including Federal False Claims Act litigation.

As a partner at our firm, David has successfully represented relator-whistleblowers in cases that have resulted in government recoveries of over $600 million. Prior to entering private practice, David was the Chief of the Affirmative Civil Enforcement Unit of the United States Attorney's Office for the Southern District of New York where he represented the United States in False Claims Act cases that resulted in government recoveries of over $200 million.

Under both state and federal False Claims Act law, relators - the whistleblower who brings information to the government about the fraud on the government - is entitled to a share of the proceeds that the government recovers.

Representing Relator-Whistleblowers

In private practice as a partner at Menz Bonner Komar & Koenigsberg LLP, David has represented whistleblowers in multiple successful qui tam suits, including:

  • U.S., California, et al., ex rel. Perez v. Stericycle, Inc. (N.D. Ill. 2016), which resulted in recoveries for the United States and various states of over $29 million.
  • U.S. ex rel. Cirrincione v. Tingley (N.D.N.Y. 2009), which resulted in a $540 million recovery for the United States;
  • U.S., N.Y. ex rel. Gelfand v. Long Beach Medical Center, Special Care Hospital Management Corporation, et al., CV-02-6079 (E.D.N.Y.) and U.S., N.Y. ex rel. Montaperto v. New Parkway Hospital, et al. CV-05-4911 (E.D.N.Y.), which resulted in a $25.87 million aggregate recovery against six defendants;
  • U.S., N.Y. ex rel. Faden v. Young Adult Institute (S.D.N.Y. 2012), which recovered $18 million in fraudulently obtained Medicaid funds from a provider of services to the developmentally disabled;
  • U.S., N.Y. ex rel. Kalyanaram v. New York Institute of Technology, et al. (S.D.N.Y. 2012), which recovered over $4 million arising from violation of the ban on the use of incentive compensation payments resulting in false claims in connection with federal and state student loans and grants.
Government Service

Prior to entering into private practice, David was an Assistant United States Attorney for the Southern District of New York from 1990 to 1999. In 1995, then United States Attorney Mary Jo White appointed him as the first head of the Office's Affirmative Civil Enforcement Unit, with responsibility for supervising civil fraud cases, including qui tam False Claims Act matters. David also served as the Health Care Fraud Coordinator for the United States Attorney's Office and was appointed as Senior Litigation Counsel in the Office.

As an Assistant United States Attorney David tried both jury and non-jury cases, and was lead trial and appellate counsel in a case against General Dynamics involving subcontractor kickbacks and false cost estimates in connection with government subsidies to construct LNG tankers. See United States v. Davis, 19 F.3d 770 (2d Cir. 1994). David also represented the United States in a False Claims Act settlement that recovered $182 million from an independent testing laboratory for unbundling charges for lab tests; a $15 million recovery from an academic medical center for overcharging the government for medical research overhead and indirect costs; an $8 million settlement with the City of New York's Emergency Medical Services Department for fraudulently billing Medicare for ambulance services; and a multi-million dollar recovery from an international bank for fraudulently procuring loan guarantees from the Small Business Administration.

David's work as an Assistant United States Attorney was recognized by the United States Attorney General's Award for Distinguished Service, the Award for Superior Performance as an Assistant United States Attorney from the Director of the Executive Office for U.S. Attorneys, as well as awards for Exceptional Achievement and Integrity from the Office of Inspector General, Department of Health and Human Services.

Education and Other Activities

David is a graduate of Williams College, cum laude, and Fordham University School of Law, and served as a law clerk for Judge Peter K. Leisure of the United States District Court for the Southern District of New York.

David has lectured at Cornell Law School about the False Claims Act and has given numerous presentations on the False Claims Act to the legal profession. A list of Mr. Koenigsberg's speaking engagements and publications is below.

Outside of his legal practice, David was elected in 2017 to serve as Village Justice for the Village of Dobbs Ferry, New York, a part time position, after he served 8 years as an elected Trustee for the Village of Dobbs Ferry.

Successes
  1. U.S., N.Y. ex rel. Perez v. Stericycle, Inc., 08-C-2390 (N.D. Ill.) (Settlement for over $29 million -- Jan. 5, 2013 for N.Y. only for $2.4 million and in 2016 $26.75 million for U.S. and several states).
  2. U.S., N.Y. ex rel. Gelfand v. Long Beach Medical Center, Special Care Hospital Management Corporation, et al., CV-02-6079 (E.D.N.Y.); U.S., N.Y. ex rel. Montaperto v. New Parkway Hospital, et al. (E.D.N.Y.), CV-05-4911: Recovery April 2015 against Columbia Memorial Hospital for $580,000; April 2015 against Benedictine Hospital for $790,000; Dec. 2014 against Special Care Hospital Management Corporation for $6,000,000; September 2012 against N.Y. Downtown Hospital for $13,400,000; and July 2008 against Our Lady of Mercy Medical Center: $4,500,000.
  3. U.S. ex rel. Reilly v. Catskill Regional Medical Center, Mt. Vernon Hospital, Applied Consulting, Inc., Cabrini Medical Center, 2000 Civ. 7906 (S.D.N.Y.) ($10,660,000 total recovery).
  4. U.S. ex rel. Cirrincione v. Tingley, et al., 98-CV-1929 (N.D.N.Y.); U.S. ex rel. Cirrincione v. Hamel, et al., 99-CV-2082 (N.D.N.Y.) ($540 million recovery for United States).
  5. U.S., N.Y. ex rel Faden v. Young Adult Institute, Inc., et al., 09 Civ. 5002 (S.D.N.Y.) ($18 million recovery).
  6. U.S., N.Y. ex rel. Kalyanaram v. N.Y.I.T. et al., 07 Civ. 9307 (S.D.N.Y.) (over $4 million recovered for United States and New York State).
  7. U.S., N.Y. ex rel. Dorman v. St. Luke's Roosevelt Hospital, 08 Civ. 9716 (S.D.N.Y.) ($2.35 million recovery).
  8. U.S. ex rel. Weintraub v. Visiting Nurse Association of Brooklyn, CV 99-6109 (E.D.N.Y.) (over $1.8 million recovery for United States).
  9. U.S. ex rel. ABC v. Columbia University Medical School, 99 Civ. 5860 (S.D.N.Y.) ($480,000 recovered for United States).
  10. U.S. ex rel. ABC v. Agave Bio Systems, Inc., 10 CIV 102 (N.D.N.Y.) ($300,000 recovery for United States).
Speaking Engagements

Panelist and Moderator, Multi-State, Non-Medicaid Cases, Sixteenth Annual Taxpayers Against Fraud Education Fund Conference, Washington, D.C. (Sept. 16, 2016).

Speaker, Blowing the Whistle on Fraud: Dodd Frank and Other Whistleblower Laws, The Financial Executives Networking Group, New York, New York (Jan. 16, 2014).

Panelist, Blowing the Whistle on Fraud: Litigating Federal and New York False Claims Act and SEC Whistleblower Cases, N.Y. State Bar Association, New York, New York (Dec. 9, 2013).

Panelist, Litigating New York State False Claims Act Cases, N.Y. State Bar Association, New York, New York (Nov. 19, 2012).

Panelist, "Successful 'Qui Tam' Partnerships with the N.Y. Attorney General's Office," Fighting Fraud Against the Government in the Empire State, Attorney General's Conference on the Strengthened New York False Claims Act, Qui Tam Actions & Enhanced Enforcement Efforts, New York State Office of the Attorney General, New York University, New York, New York (June 8, 2011).

Panelist, False Claims Litigation 2010, Health Care False Claims Act Cases: Is it a Federal Case? Is it a State Case? Is It All of the Above in Many Permutations, All at Various Stages of Development? Practicing Law Institute, New York, New York (Nov. 5, 2010).

Panelist, How to Reduce a Physician's Risk of Investigation by Regulatory and Prosecutorial Agencies, Joint Meeting: Health Law Section, N.Y. State Bar Association & Medical Society of the State of New York (Queens, New York) (Oct. 11, 2000).

Panelist, A National Institute on the Civil False Claims Act and Qui Tam Enforcement, American Bar Association (Washington, D.C.) (Nov. 19-20, 1998).

Publications

"Inability to Identify Invoices Does Not Mandate Dismissal of FCA Complaints," N.Y. Law Journal (Aug. 15, 2017).

"Key Legal Areas for Corporate Compliance Programs: Health Care Compliance Plans," in T. Banks & F. Banks, Corporate Legal Compliance Handbook, Second Edition, Chapter 9 (2016) (Wolters Kluwer).

"New York unleashes new tax enforcement tool," International Tax Law Review, www.internationalreview.com (July/August 2012).

Move Village Elections to November, Greenawalt, W.; Koenigsberg, D., N.Y. State Bar J. Nov./Dec. 2006, p. 24.

"A Compliance Plan Can Save Your Business!", Westchester Physician, Vol. 14, No. 9 (Oct. 2002)

"Relator's Share Under the False Claims Act," N.Y. Law Journal, Vol. 222 No. 101 (1999).

The Standard of Proof in At-Large Vote Dilution Discrimination Cases After City of Mobile v. Bolden, 10 Fordham Urban Law Journal 103 (1981).

The False Claims Act and Other Whistleblower Laws About the False Claims Act (31 U.S.C. §§ 3729-33)

The False Claims Act includes a qui tam provision that permits a whistleblower, known as a relator, to file a lawsuit in federal court on behalf of the United States Government and share in any recovery.

The FCA is also referred to as Lincoln's Law. The law was first enacted in March 1863 during the Civil War because the Union Army was supplied with sick mules, bad ammunition, shoddy uniforms, and rancid food. Updated in 1986: since then used principally against defense and health care industries.

The term is an abbreviation of the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning "who pursues this action on our Lord the Kings' behalf as well as his own." United States ex rel. Fair Laboratory Practices Associates v. Quest Diagnostics Inc., 734 F.3d 154, 158 n. 2 (2d Cir. 2103), quoting Rockwell Int'l. Corp. v. United States, 549 U.S. 457, 463 n. 2 (2007).

Some of the key provisions of the False Claims Act include:

  • Treble Damages, penalties up to $11,000 per false claim.
  • Rewards to Whistleblowers of 15% - 30% of recovery, plus attorney's fees.
  • Anti-Retaliation protections.
  • No claims arising under Internal Revenue Code.
  • Relator needs a lawyer to file a case.

The Whistleblower files a case in court under seal to permit the government to conduct a confidential investigation. If the government declines to intervene in the case, the whistleblower may choose to proceed with the case on her own if government does not.

State and Local False Claims Laws

29 States and 7 cities and counties have their own false claims laws, including NYC, Chicago, Washington, D.C., and Philadelphia.

N.Y. False Claims Act: N.Y. State Fin. Law §§ 187-194
  • Also a qui tam statute.
  • Treble Damages plus penalties up to $12,000 per false claim.
  • Rewards to Whistleblowers of 15-30% of recovery, plus attorney's fees..
  • Anti-Retaliation protections.
  • Applies to protect all government entities in N.Y. State, including the state, counties, cities, school districts, and local governments.
  • Permits claims under New York's Tax Law if there is at least $350,000 in unpaid taxes and the taxpayer has annual income of at least $1 million.
  • Whistleblower files case in court and can proceed on own if government not intervene.
IRS Whistleblower Law: 26 U.S.C. § 7623(b)

Mandatory awards to whistleblowers/informants of 15-30% where amount in dispute exceeds $2 million, and individual taxpayer's gross annual income exceeds $200,000 for taxable year at issue.

Whistleblower provides information to IRS; cannot pursue lawsuit if IRS does not pursue.

First known award was to Bradley Birkenfeld in the amount of $104 million for providing information about UBS helping U.S. taxpayers hide income from the IRS.

26 U.S.C. § 7623(a)

In December 2013, IRS provided reward under pre-2006 law in the amount of $20 million to whistleblower for exposing abusive tax shelters involving billions of dollars.

Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") 12 U.S.C. § 1833a
  • Created as a result of the savings and loan crisis of the late 1980s.
  • Applies to frauds that affect federally-insured financial institutions.
  • Whistleblower files a declaration of a violation affecting a depository institution insured by the FDIC or any other agency of the United States.
  • Statute permits the Attorney General to refer matter to a private attorney, or if the Attorney General does not proceed with action within one year.
  • Rewards based upon the first $10 million of recovery, 20-30% of the first million and 10% of the last $5 million, capped at 16% of the first $10 million.
  • Applies to frauds that affect financial institutions, including mail and wire frauds.
Dodd-Frank, SEC Whistleblower Law (2010): 15 U.S.C. § 78u-6 et seq. Bounty Rewards

Any person can file a complaint with the U.S. Securities and Exchange Commission or SEC - person must voluntarily provide original information about a violation of the securities laws. The complaint is filed on Form TCR, and is accompanied by detailed report disclosing the relevant and material information. The complaint is investigated subject to confidentiality obligations similar to False Claims Act.

Rewards whistleblowers who assist the government through the SEC in recovering through restitution or otherwise, damages suffered by private parties - not limited to damages suffered by the government itself.

Tip program described at SEC-Whistleblower website.

A SEC whistleblower does not need a lawyer to file a tip, but the whistleblower can file case anonymously only through an attorney.

Submit tip on Form TCR, either through the SEC's internet portal.

Or, by mail or fax to:

SEC Office of the Whistleblower
100 F Street NE
Mail Stop 5553
Washington, DC 20549
Fax: (703) 813-9322

If case is successful with more than $ 1million in monetary sanctions, the SEC is required to pay an award of 10% - 30% of the monetary sanctions collected by SEC.

Whistleblower provides information to SEC Whistleblower Office. No court filing and whistleblower cannot pursue claim against defendant if SEC does not act.

Covers all types of securities fraud, such as insider trading, issuer fraud, accounting frauds, bribery of foreign officials.

In October, 2013, SEC announced reward of $14 million. First payment of $50,000 made in August 2012; awards were also announced in August 2013 of $25,000 to three persons who helped government halt a sham hedge fund.

Dodd Frank Whistleblower Protection

Dodd Frank also provides for a private cause of action for whistleblower who alleges retaliatory discharge or other discrimination. 15 U.S.C. §78u-6(h)(1)(B)(j).

An employer may not discharge, demote, suspend, threaten, harass, or take any other retaliatory action against an employee who either:

  1. Provides information about his or her employer to the SEC in accordance with the whistleblower rules;
  2. Initiates, testifies in, or assists in an investigation or judicial or administrative action; or
  3. Makes disclosures that are required or protected under SOX, the Exchange Act, and any other law, rule, or regulation subject to the jurisdiction of the Commission.

Under the law, relief includes reinstatement to the same seniority, double back pay, and litigation costs (including attorneys' fees and expert witness fees).

FDIC Employee Protection Remedy 12 U.S.C. § 1831j
  1. No insured depository institution may discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to the request of the employee) provided information to any Federal banking agency or to the Attorney General regarding (A) a possible violation of any law or regulation; or (B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; by the depository institution or any director, officer, or employee of the institution.
  2. Employee may file lawsuit in United States district court.
  3. Remedies: reinstatement, compensatory damages, and other appropriate remedies.
FDIC Reward for Information Leading to Recoveries or Civil Penalties 12 U.S.C. § 1831k

If information leads to recovery of fine or civil penalty under certain laws, whistleblower can receive up to $100,000.

Whistleblower Protections for Employees of Non-FDIC Financial Institutions 31 U.S.C. § 5328

Parallel protection as under FDIC law.

Credit union employee protection remedy 12 U.S.C. § 1790b

Parallel to protection provided by FDIC law.

Sarbanes Oxley Act: Anti-retaliation provision: 18 U.S.C. § 1514A

Protections for whistleblowers employed by publicly traded companies and their subsidiaries "whose financial information is included in the consolidated financial statements of such publicly traded company." This includes foreign subsidiaries and affiliates of U.S. public companies. Employees of ratings agencies are also protected.

The law is administered through the U.S. Department of Labor, Occupational Safety and Health Administration ("OSHA"). Whistleblowers may file complaint with Labor Department and also, under certain circumstances, in federal court.

Employee is protected from retaliation for reporting violations of the federal (1) mail, (2) wire, (3) bank, (4) securities fraud statutes, (5) any SEC rule or regulation, or (6) any federal law relating to fraud against shareholders.

Employee must show (1) she engaged in protected activity or conduct; (2) the employer knew of her protected activity; (3) the employee suffered an unfavorable personnel action; and (4) her protected activity was a contributing factor in the unfavorable personnel action. 18 U.S.C. § 1514A(b)(2)(C); 49 U.S.C. 42121(b); 29 C.F.R. § 1980.104(b)(1).

Adverse personnel action could be termination of employment, change in duties and responsibilities, failure to promote, failure to increase salary, etc.

Remedies include "all relief necessary to make the employee whole." Compensatory relief includes reinstatement with the same seniority status that the employee would have had, but for the discrimination; back pay, with interest; and compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.

Sarbanes Oxley Act (2002): Other Provisions
  1. Publicly traded companies must create internal and independent audit committees; procedures for employees to file internal whistleblower complaints, with procedures to protect the confidentiality of employees who report allegation to the audit committee.
  2. Attorneys who practice before the SEC, under certain circumstances, may be required to blow the whistle on their employer or "client."
  3. The federal obstruction of justice statute criminalizes retaliation against whistleblowers who provide "truthful information" to a "law enforcement officer" about the "commission or possible commission of any federal offense." This is not limited to publicly traded corporations; applies to any employer.
  4. Enforcement provision permits the SEC to enforce the Ac, including the whistleblower related provisions. The law also provides for criminal penalties for any violation of the Act, including the whistleblower provisions.

Disclaimer: This information contained herein is for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems.

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Education

J.D., Fordham University School of Law, 1982
Fordham Urban Law Journal, Commentary Editor

B.A., Williams College, 1978
Cum Laude

Jurisdictions Admitted to Practice New York, 1983
United States District Court for the Southern District of New York
United States District Court for the Eastern District of New York
United States District Court for the Northern District of New York
United States Court of Appeals for the Second Circuit
United States Supreme Court
Professional & Bar Association Memberships

Association of the Bar of the City of New York

New York State Bar Association

Westchester County Bar Association

AV rated by Martindale-Hubbell Legal Directory

Certified Volunteer Mediator, U.S. District Court, Southern District of New York

Publications
  • "Inability to Identify Invoices Does Not Mandate Dismissal of FCA Complaints," New York Law Journal (Aug. 15 2017).
  • "Key Legal Areas for Corporate Compliance Programs: Health Care Compliance Plans," in T. Banks & F. Banks, Corporate Legal Compliance Handbook, Chapter 9 (2nd ed. 2010) (Aspen Law & Business Publishers).
  • "Relator's Share Under the False Claims Act," New York Law Journal, Vol. 222 No. 101 (1999).
  • "A Compliance Plan Can Save Your Business!," Westchester Physician, Vol. 14, No. 9 (Oct. 2002).
Elected Office
  • Village of Dobbs Ferry, New York
    • Trustee, 2006-2014
    • Deputy Mayor, 2007-2009
Published Decisions
  • State of New York and Empire State Ventures v. Sprint Nextel Corp., 41 Misc. 3d 511 (Sup. Ct. N.Y. Co. 2013), aff'd, 114 A.D.3d 622 (1st Dep't 2014) aff'd 26 N.Y. 3d 96 (2015) cert. denied, 136 S. Ct. 2387 (May 31, 2016)
  • U.S. ex rel. Reilly v. Catskill Regional Medical Center, 2007 WL 1307920 (S.D.N.Y., Mar. 29, 2007)
  • Lonegan v. Hasty, 436 F. Supp.2d 419 (E.D.N.Y. 2006)
  • Gay v. Farella, 5 A.D.3d 540, 772 N.Y.S.2d 871 (2d Dep't 2004)
  • De Carlo v. Ratner, 2002 WL 31840789 (2d Cir. 2002)
  • Castle Oil Corp. v. Thompson Pension Employee Plans, Inc., 299 A.D.2d 513, 750 N.Y.S.2d 629, 2002 (2d Dep't 2002)
  • De Carlo v. Ratner, 204 F. Supp.2d 630 (S.D.N.Y. 2002)
  • Tivoli v. United States, 164 F.3d 619 (2d Cir. 1998)
  • Tivoli v. United States, 1997 WL 1047860 (S.D.N.Y., Oct. 31, 1997)
  • Tivoli v. United States, 1996 WL 1056005 (S.D.N.Y., Sept. 27, 1996)
  • U.S. ex rel. Pentagen Technologies Int'l Ltd. v. CACI Int'l, Inc.,1996 WL 11299 (S.D.N.Y., Jan. 04, 1996)
  • U.S. ex rel. Pentagen Technologies Int'l Ltd. v. CACI Int'l, Inc., 1995 WL 693236, (S.D.N.Y., Nov. 22, 1995)
  • U.S. by Dept. of Defense v. CACI Int'l, Inc., 953 F. Supp. 74 (S.D.N.Y. 1995)
  • U.S. by Dept. of Defense v. CACI Int'l, Inc., 885 F. Supp. 80 (S.D.N.Y. 1995)
  • Pyramid Petroleum Corp. v. United States, 856 F. Supp. 150 (S.D.N.Y. 1994)
  • United States v. General Dynamics Corp., 19 F.3d 770 (2d Cir. 1994)
  • Liddy v. Cisneros, 823 F. Supp. 164 (S.D.N.Y. 1993)
  • United States v. Davis, 803 F. Supp. 830 (S.D.N.Y. 1992)
  • Nikkal Industries, Ltd. v. Salton, Inc., 735 F. Supp. 1227 (S.D.N.Y. 1990)
  • Tesoro Alaska Petroleum Co. v. State, 757 P.2d 1045 (Alaska 1988)
  • Nikkal Industries, Ltd. v. Salton, Inc., 689 F. Supp. 187(S.D.N.Y. 1988)
  • United States v. Gleneagles Invest. Co., 584 F. Supp. 671 (M.D. Pa. 1984)
  • United States v. Gleneagles Invest. Co., Inc., 571 F. Supp. 935 (M.D. Pa. 1983)
Former Associations
  • U.S. Attorney's Office, S.D.N.Y
    • (1990 - 1999)
  • Dewey Ballantine
    • (1986 - 1990)
  • Whitman & Ransom
    • (1982 - 1984)