Qui Tam Litigation
At Menz Bonner Komar & Koenigsberg, LLP, we represent whistleblowers in False Claims Act or Qui Tam Lawsuits. These cases involve claims by private citizens, or "relators," who have discovered that a fraud has been perpetrated against the federal government or a state or local entity.
Our lawyers have over twenty-five years of experience in these cases and have successfully represented whistleblowers in cases nationwide.
David Koenigsberg, Esq., heads our whistleblower practice group and has made a career of investigating and exposing financial fraud on government entities and gaining significant recoveries on behalf of the government and a share of such recoveries for his whistleblower clients.
Our practice has filed whistleblower cases that have resulted in recoveries by the United States and state and local governments of over half a billion dollars.
If You believe that You have information about a Fraud on the United States or a State or Local Government Entity, contact David Koenigsberg, Esq., the leader of our Whistleblower Practice, at: firstname.lastname@example.org or phone: (914) 949-0222
Please do not include any confidential or sensitive information by email.
In connection with our qui tam litigation practice, MBK&K is intimately familiar with and has litigated cases involving a wide variety of whistleblower statutes and claims, including the following:
- False Claims Act
- United States and State Law False Claims Acts
- Qui Tam Lawsuits
- Health Care Fraud
- Medicare Billing Fraud
- Medicaid Billing Fraud
- Stark Law Violations
- Nih Grant Fraud
- Defense Contractor Fraud
- Not for Profit Institution Fraud
- Higher Education Grant Fraud
- For-Profit College Incentive Compensation Fraud
- Government Contractor Fraud
- New York State Tax Fraud
- Pharmaceutical Fraud
- IRS Tax Fraud
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.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. The law was updated in 1986, and since then has been used principally against the 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.State and Local False Claims Laws
Twenty-nine (29) States and seven (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.
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:
- provides information about his or her employer to the SEC in accordance with the whistleblower rules;
- initiates, testifies in, or assists in an investigation or judicial or administrative action; or
- 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
- 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.
- Employee may file lawsuit in United States district court.
- Remedies: reinstatement, compensatory damages, and other appropriate remedies.
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
- 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.
- Attorneys who practice before the SEC, under certain circumstances, may be required to blow the whistle on their employer or "client."
- 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.
- 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.
David Koenigsberg is partner in the law firm of Menz Bonner Komar & Koenigsberg LLP and has been practicing law for 34 years and has been litigating False Claims Act cases for over 25 years, the last 18 years of which has been in private practice where he has focused on representing relators in whistleblower litigation, including Federal False Claims Act litigation.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.Private Practice
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 incentive compensation payments resulting in false claims in connection with federal and state student loans and grants.
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. Click here for a list of Mr. Koenigsberg's speaking engagements and publications.
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.
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
- 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).
- 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.
- 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).
- 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).
- U.S., N.Y. ex rel Faden v. Young Adult Institute, Inc., et al., 09 Civ. 5002 (S.D.N.Y.) ($18 million recovery).
- 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).
- U.S., N.Y. ex rel. Dorman v. St. Luke's Roosevelt Hospital, 08 Civ. 9716 (S.D.N.Y.) ($2.35 million recovery).
- 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).
- U.S. ex rel. Coleman v. Columbia University Medical School, 99 Civ. 5860 (S.D.N.Y.) ($480,000 recovered for United States).
- U.S. ex rel. Tawadrous v. Agave Bio Systems, Inc., 10 CIV 102 (N.D.N.Y.) ($300,000 recovery for United States).