The False Claims Act (FCA) is the oldest whistleblower law in the United States. It was enacted in 1863 in response to the rampart fraud that defense contractors were committing during the Civil War. The law is intended to incentivize individuals with knowledge of fraudulent activities to blow the whistle and receive an award of 15% – 30% of whatever the government recovers in penalties and back payments from these fraudsters. This law has been so effective that many other whistleblower laws are based on it and according to the Department of Justice (DOJ), in 2021 there have been over $5.6 billion in settlements from civil cases involving fraud and false claims to the government.
The way the actions brought under the FCA usually work is that people with insider information about wrongdoing or people who through independent analysis, uncover wrongdoing, can file a Qui Tam action. This means that they can effectively represent and act in the interest of the United States Government against the wrongdoer. This doesn’t mean that the DOJ can’t themselves bring an action under the False Claims Act; in fact, in 2021 we actually saw them start more cases than usual, with 203 out of the 801 new FCA cases filed. This is an excellent thing as it continues to show how effective the FCA is when it comes to combatting fraudulent activity and it shows that the DOJ is not just passively waiting for these cases to come to them and are actually being proactive in their fight against fraud. Historically though, in virtually every year since the FCA was amended in 1986, it has been whistleblower who have lead to the initiation of the vast majority of FCA actions. That the DOJ has started initiating more of its own FCA actions could be because of the government seeking to ramp up its enforcement of Covid-19 fraud.