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Qui Tam 2020 is the third annual conference of the Federal Bar Association's Qui Tam Section, for which TELG's Scott Oswald serves as chair. The two-day event will tackle some of the hottest topics in False Claims Act litigation, with panels featuring attorneys from both sides of the aisle, along with government prosecutors, agency representatives, and subject-matter experts.
Here Scott discusses multi-relator cases under the FCA with Marlan B. Wilbanks of Wilbanks & Gouinlock, LLP, who'll be leading a panel on the topic on Day One of the conference.
This video interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on January 9, 2020.
Qui Tam 2020 Panel Preview: Multi-Relator Cases under the False Claims Act
» Click here for registration and full details on Qui Tam 2020
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: [Addressing camera] We are here with Marlan Wilbanks, who is one of our moderators for this year’s Qui Tam Conference on February 27-28, 2020 in Washington.
[Turning to Wilbanks] Marlon, tell us a little bit about your panel coming up.
Marlan B. Wilbanks: We have an interesting panel. The subject matter is very relevant; it’s dealing with multi-relator litigation. For the panel we have a government representative, Lori Oberembt, who’s a very senior member of the Department of Justice here in the civil section. We have Chris Burris, who is a very experienced lawyer with King & Spalding in Atlanta — always been on the defense side, that I’ve worked against in several cases, have a lot of respect for. And Marc Raspanti, who for at least two decades has handled FCA work on behalf of the whistleblower or the relator. So we have three panelists that have seen the evolution of these cases and have some ideas about where we’re headed in situations where you have more than one person that files a whistleblower case.
Oswald: And why does that matter? What is the first-to-file bar?
Wilbanks: The first-to-file bar is intended to stop copycat litigation. It’s basically statutorily designed to be sure that it’s only the first person that brings the relevant information to the government that’s rewarded. [I]t’s a very significant thing in our practice, because the government wants to pay one relator — and the defendants, when it comes around to paying fees, they want to pay one relator. So what do you do when there’s more than one relator? That’s what our panel is about.
Oswald: Got it. So tell us a little bit about trends in this area. What has the department’s position been previously, what is it today, what do you see in the future?
Wilbanks: The trend, because there are more cases filed, is that there are more multi-relator cases. You don’t know when you file your case, because it’s under seal, if anyone has beaten you to the courthouse. There could be, before or after, any number of complaints. What I see more now is the government wanting to work with more than just the first-filed relator — wanting to work with all of them, to get the most information possible. And that’s good.
The tough part is: How are the relators going to work between themselves? [How will they] figure out, if there is a relator share award paid, what [happens] if the second, third, and fourth [whistleblowers] did more work than the first? They may not be on the best legal ground — yet equitably, they made the pie bigger.
So that’s where we are. Defendants are aware of that and defendants want to — they don’t want to deal with multiple layers of relators. So they have to try and get a feel [for] who the government thinks is first to file. And that’s very important but, in the end, many times it’s actually [decided by] litigation. You could file first but there [might] be a defect in your complaint so that a subsequent [filer] may actually have the only valid legal complaint that’s pending.
So there’s a lot of moving parts, but [this is] going to happen more and more because more people are filing FCA cases.
Oswald: So the first-to-file — the first filer might have an incentive to actually negotiate with the other relators down the stream?
Wilbanks: Absolutely, because sometimes, in a football analogy, you can get Mr. Inside and Mr. Outside. You may have somebody that’s an insider, from a corporate position — but these other whistleblowers have worked at locations everywhere else, so that helps the argument that it’s a corporate-wide scheme.
Oswald: Might make the case bigger?
Wilbanks: Might make it bigger. Might make it national, as opposed to local.
Oswald: Got it. And talk to us about the defense bar. How do they see the multi-relator-type cases, as opposed to a single relator case?
Wilbanks: Yeah, I think it creates for them both opportunities and problems. The problems are, as I mentioned before, where there’s smoke there’s fire. Different people [are] bringing different pieces of evidence to the government that can make it a strong case for the whistleblower.
The opportunity is that it really gives them a chance to learn a lot about the case … that may help them defend, regardless of who is first-to-file. [I]t also gives them a real chance to pit the relators against each other, particularly in situations where they’re trying to figure out who the defendants should be dealing with — who they should pay attorney fees and costs at the end of the case.
It’s an interesting dynamic that’s very fact-driven, but defendants are well aware that there have been legal battles between the whistleblowers — and whistleblower lawyers — over this very issue. And so is the DOJ. From the government’s standpoint, what they want is for everybody to play nice.
Oswald: And is it in the relators’ interest for everyone to play nice on their side?
Wilbanks: It is. It is. Because — two answers to the same question.
Yes, it’s in their interest because bad law can … blur the lines as to what most of us think [are] pretty clear guidelines now, on the first-to-file bars and [on] other jurisdictional bars.
But some people are unreasonable. The government can’t do anything to force it. What the government does have to do sometimes, to help parties reach an agreement, is come out and give their opinion — it’s not up to them, they’re not the judge, but who they believe provided the first information on the covered conduct that they’re focusing on.
And sometimes that helps lawyers who are saying, “No, this is about my client’s case” and the other one’s [saying], “No, it’s about my client’s case.” Because the government also only wants to pay one relator in a multi-relator [case], if it’s on the same cause of action.
Oswald: And it might give relator’s counsel some cover —
Oswald: — in dealing with their client.
Oswald: Marlan, thank you.
Wilbanks: Thank you.
Oswald: [Turning to camera] And we look forward to seeing each of you in Washington on February 27-28, 2020 for this year’s Qui Tam Conference. You can register at the Federal Bar Web page at fedbar.org.