Whistleblowers Can Provide the Evidentiary Catalyst to Criminal Prosecutions

Recently, NPR ran a radio segment on the False Claims Act titled, “How A Law From The Civil War Fights Modern-Day Fraud.” The broadcast did an excellent job of chronicling the history of the False Claims Act, and its current role in uncovering modern-day fraud schemes. The broadcasted ended by noting a limitation of the law, namely that it is a civil statute that does not criminally penalize the individuals who perpetrated the fraud.

Nolan Auerbach & White partner Jeb White testified before Congress, raising the same concerns and encouraging action to hold individuals accountable. Later, he penned a widely circulated Nature Medicine article titled, “Masterminds behind pharmaceutical fraud deserve prison time.” Others, both inside and outside of the government, have made similar calls for action.

While individuals still largely evade punishment in False Claims Act cases, the government is evidently stepping up its efforts to hold FCA violators criminally liable when there is evidence of criminal wrongdoing. This was the message delivered recently by DOJ Criminal Division Assistant Attorney General Leslie Caldwell.

In summary, Caldwell stressed that the Criminal Division attorneys will continue to proactively review FCA qui tam actions for evidence for potential criminal wrongdoing. In the appropriate cases, they will move forward with a criminal action. This message further underscores the importance of the False Claims Act. While it is a civil statute and therefore is not relevant to criminal prosecutions, the cases do invite scrutiny from DOJ criminal attorneys.