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By: Don McKenna

A recent opinion from the Sixth Circuit Court of Appeals highlights the pitfalls of hiring a lawyer who does not have specific experience handling False Claims Act cases.  The False Claims Act has numerous procedural requirements not found in most types of litigation.  For example, only the first whistle blower to file suit on a particular claim may bring the suit.  All others who file later on the same claims are barred.  Thus, the False Claims Act is a "race to the courthouse."

Further, the False Claims Act requires that the lawsuit be filed under seal so that neither the defendant, nor anyone in the public, know about the suit.  The seal requirement was intended by Congress to give the Government sufficient time to investigate the allegations and decide whether or not to intervene in the suit.  One whistle blower recently found out the hard way, the perils of hiring a lawyer not familiar with this particular procedural requirement.

In, U.S. ex rel. Summers v. LHC Group Inc., 2010 WL 3917058 (6th Cir. Oct. 4, 2010), the whistle blower filed a False Claims Act suit alleging the defendant fraudulently billed Medicare for unnecessary health services.  However, the whistle blower failed to meet the procedural requirement of filing the suit under seal.  The defendant moved to dismiss based on failure to meet the seal requirement and the trial court ordered the case dismissed.  On appeal, the Sixth Circuit Court of Appeals held that failing to file the case under seal was fatal to the case and was not simply a procedural mis-step that could be over looked.

Moral of the story for whistle blowers: Research your lawyer and make sure he or she has experience handling False Claims Act cases.  Read the lawyer's professional bio.  See if the lawyer has published any articles on False Claims Act topics.  Has the lawyer spoken at any seminars about the False Claims Act?  Does the lawyer appear in as counsel of record in any False Claims Act published federal opinions?  These are ways that you can be sure your lawyer knows the area of the law and will avoid the procedural pitfalls of the False Claims Act.

If you wish to speak to a False Claims Act lawyer at Hare, Wynn, Newell & Newton call 800-568-5330.

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