In a recent case, the US Court of Appeals for the Third Circuit confirmed that the anti-retaliation provision of the False Claims Act (FCA) prohibits employers from retaliating against employees who undertake lawful efforts to “stop” a violation of the FCA, even if there is not a “distinct possibility” of an actual FCA lawsuit being filed, and clarified how the 2010 amendments to the FCA’s retaliation provision 31 USC § 3730(h) should be applied.
In US ex rel. Ascolese v. Shoemaker Constr. Co., No. 21-2899, 2022 WL 17335121 (3d Cir. Nov. 30, 2022), the Third Circuit also joined with other courts to have considered this issue, [1] and departed from its own prior precedent that suggested the “distinct possibility” standard would remain in place for all types of “protected conduct.” [2]
FCA PRECLUDES RETALIATION AGAINST WHISTLEBLOWING EMPLOYEES AND SUBCONTRACTORS
The FCA, an anti-fraud statute that was first enacted in the Civil War era, creates civil liability for the submission of false claims for payment or the use of false statements in order to get claims paid by the federal government. [3] The FCA imposes steep monetary consequences for violations, including treble damages and civil penalties of up to tens of thousands of dollars per false claim. [4] The FCA also contains a qui tam provision, which allows whistleblowers with knowledge of an alleged fraud to commence civil actions in the name of the government and share in a portion of any resultant damages award or...
In the rainforest-covered province of Tshopo in northeastern Congo, fear began with whispers. Late last year, villagers circulated alarming stories that a mysterious illness was causing men’s geni...