Many clients have called with worries about what the new administration and new Justice Department will mean for their cases.  The best guess is, “probably not much”.  Here’s why qui tam lawyers are not too worried:

  1. The False Claims Act Has Enjoyed Bipartisan Support. The amendments that critically strengthened the FCA and made it much friendlier for whistleblowers were signed into law by Ronald Reagan in 1986.  The chief architect of those amendments, Sen. Charles Grassley, is a conservative Republican from Iowa.  We have also gotten help from other Republicans in the House and Senate.  Nobody likes to be seen as a protector of fraud against the taxpayers, and that’s not likely to change.
  1. The Federal-Level False Claims Prosecutors Are Very Well Insulated From Pressure by Civil Service Protections. Of all the Justice Department lawyers working on False Claims Act cases, only a handful are political appointees.  Most of them are career lawyers who have strong civil service protections and take great pride in their accomplishments.  That’s not going away.
  1. If There Is Any Political Pressure, It is Only On the Margins. The very day the Supreme Court handed the 2000 Presidential election to George Bush, I filed the biggest qui tam case in my career at that point – a massive kickback and pricing fraud case against Merck pharmaceuticals.  The next day Bush appointed Merck Chairman Ray Gilmartin to his transition team.  In the 7+ years we fought on this case (with Eric Holder representing Merck, by the way) I never got the sense that there was any corrupt political interference with the case.  Our team worked hand in glove with the federal prosecutors to bring in a $423 million recovery for the taxpayers, without any hint of favoritism toward Merck.

In fact, FCA recoveries during the Bush years were significantly higher than they were during the Clinton Administration.

  1. Some Modest Predictions About What We Can Expect. The biggest challenges will lie not with the Justice Department, but with the program managers in the agencies whistleblowers and the DOJ try to protect from fraud.  We can expect that at the margins we will face narrower definitions of what conduct is fraudulent, and an increased emphasis on traditional kinds of fraud prosecutions.  It is nonetheless important for whistleblowers to remember that we can always prosecute these case ourselves.  In fact, over the years there has been a steady increase in the number of successful qui tam cases championed by whistle blowers and their lawyers, with DOJ sitting on the sidelines.