ABA Antitrust Section Brownbag Panel: “State and Federal False Claims Acts: A Major
Tool for Uncovering Financial Fraud”
March 8, 2013
Moderator
Gwendolyn Cooley, Wisconsin Attorney General’s Office, Madison, WI
Panelists
Gary Azorsky, Cohen Milstein, Philadelphia, PA
Robin Baker, WilmerHale, New York, NY
Randall Fox, New York Attorney General’s Office, New York, NY
Federal FCA: 31 U.S.C. §§ 3729-33 (copy of text provided)
State FCAs: N.Y. State Finance Law §§ 187-94 (2010) (copy of text provided); spreadsheet re
state FCAs also provided
Agenda
I.
II.
Overview of Federal and State False Claims Acts (25 min.)
A.
Prohibited Conduct (Robin)
B.
Overview of Types of Cases (Randy)
C.
Whistleblower Provisions (Gary)
D.
Damages & Penalties (Randy)
E.
Bars to Action (Gary)
False Claims Act Cases: The Practical Realities (25 min.)
A.
Initiating Cases (Gary)
B.
Government Investigations & Intervention/Non-Intervention (Randy)
C.
Settling FCA Cases (Robin)
D.
Litigating FCA Cases (Robin)
III.
Other Whistleblower Programs (5 min.) (Gary)
IV.
Questions (5 min.)
FEDERAL FALSE CLAIMS ACT
31 U.S.C. §§ 3729-3733
31 USC § 3729 - False claims
(a)
Liability for Certain Acts.—
(1)
1
In general.— Subject to paragraph (2), any person who—
(A)
knowingly presents, or causes to be presented, a false or fraudulent claim
for payment or approval;
(B)
knowingly makes, uses, or causes to be made or used, a false record or
statement material to a false or fraudulent claim;
(C)
conspires to commit a violation of subparagraph (A), (B), (D), (E), (F), or
(G);
(D)
has possession, custody, or control of property or money used, or to be
used, by the Government and knowingly delivers, or causes to be
delivered, less than all of that money or property;
(E)
is authorized to make or deliver a document certifying receipt of property
used, or to be used, by the Government and, intending to defraud the
Government, makes or delivers the receipt without completely knowing
that the information on the receipt is true;
(F)
knowingly buys, or receives as a pledge of an obligation or debt, public
property from an officer or employee of the Government, or a member of
the Armed Forces, who lawfully may not sell or pledge property; or
(G)
knowingly makes, uses, or causes to be made or used, a false record or
statement material to an obligation to pay or transmit money or property to
the Government, or knowingly conceals or knowingly and improperly
avoids or decreases an obligation to pay or transmit money or property to
the Government, is liable to the United States Government for a civil
penalty of not less than $5,000 and not more than $10,000, as adjusted by
the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C.
2461; Public Law 104–410[1]), plus 3 times the amount of damages which
the Government sustains because of the act of that person.
So in original. Probably should be “101–410”.
-2-
(2)
(3)
(b)
Reduced damages.— If the court finds that—
(A)
the person committing the violation of this subsection furnished officials
of the United States responsible for investigating false claims violations
with all information known to such person about the violation within 30
days after the date on which the defendant first obtained the information;
(B)
such person fully cooperated with any Government investigation of such
violation; and
(C)
at the time such person furnished the United States with the information
about the violation, no criminal prosecution, civil action, or administrative
action had commenced under this title with respect to such violation, and
the person did not have actual knowledge of the existence of an
investigation into such violation, the court may assess not less than 2 times
the amount of damages which the Government sustains because of the act
of that person.
Costs of civil actions.— A person violating this subsection shall also be liable to
the United States Government for the costs of a civil action brought to recover
any such penalty or damages.
Definitions.— For purposes of this section—
(1)
the terms “knowing” and “knowingly”—
(A)
(B)
(2)
mean that a person, with respect to information—
(i)
has actual knowledge of the information;
(ii)
acts in deliberate ignorance of the truth or falsity of the
information; or
(iii)
acts in reckless disregard of the truth or falsity of the information;
and
require no proof of specific intent to defraud;
the term “claim”—
(A)
means any request or demand, whether under a contract or otherwise, for
money or property and whether or not the United States has title to the
money or property, that—
(i)
is presented to an officer, employee, or agent of the United States;
or
-3-
(ii)
(B)
is made to a contractor, grantee, or other recipient, if the money or
property is to be spent or used on the Government’s behalf or to
advance a Government program or interest, and if the United
States Government—
(I)
provides or has provided any portion of the money or
property requested or demanded; or
(II)
will reimburse such contractor, grantee, or other recipient
for any portion of the money or property which is requested
or demanded; and
does not include requests or demands for money or property that the
Government has paid to an individual as compensation for Federal
employment or as an income subsidy with no restrictions on that
individual’s use of the money or property;
(3)
the term “obligation” means an established duty, whether or not fixed, arising
from an express or implied contractual, grantor-grantee, or licensor-licensee
relationship, from a fee-based or similar relationship, from statute or regulation,
or from the retention of any overpayment; and
(4)
the term “material” means having a natural tendency to influence, or be capable of
influencing, the payment or receipt of money or property.
(c)
Exemption From Disclosure.— Any information furnished pursuant to subsection (a)(2)
shall be exempt from disclosure under section 552 of title 5.
(d)
Exclusion.— This section does not apply to claims, records, or statements made under
the Internal Revenue Code of 1986.
31 USC § 3730 - Civil actions for false claims
(a)
Responsibilities of the Attorney General.— The Attorney General diligently shall
investigate a violation under section 3729. If the Attorney General finds that a person has
violated or is violating section 3729, the Attorney General may bring a civil action under
this section against the person.
(b)
Actions by Private Persons.—
(1)
A person may bring a civil action for a violation of section 3729 for the person
and for the United States Government. The action shall be brought in the name of
the Government. The action may be dismissed only if the court and the Attorney
General give written consent to the dismissal and their reasons for consenting.
(2)
A copy of the complaint and written disclosure of substantially all material
evidence and information the person possesses shall be served on the Government
-4-
pursuant to Rule 4(d)(4) of the Federal Rules of Civil Procedure. The complaint
shall be filed in camera, shall remain under seal for at least 60 days, and shall not
be served on the defendant until the court so orders. The Government may elect to
intervene and proceed with the action within 60 days after it receives both the
complaint and the material evidence and information.
(3)
The Government may, for good cause shown, move the court for extensions of the
time during which the complaint remains under seal under paragraph (2). Any
such motions may be supported by affidavits or other submissions in camera. The
defendant shall not be required to respond to any complaint filed under this
section until 20 days after the complaint is unsealed and served upon the
defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure.
(4)
Before the expiration of the 60-day period or any extensions obtained under
paragraph (3), the Government shall—
(5)
(c)
(A)
proceed with the action, in which case the action shall be conducted by the
Government; or
(B)
notify the court that it declines to take over the action, in which case the
person bringing the action shall have the right to conduct the action.
When a person brings an action under this subsection, no person other than the
Government may intervene or bring a related action based on the facts underlying
the pending action.
Rights of the Parties to Qui Tam Actions.—
(1)
If the Government proceeds with the action, it shall have the primary
responsibility for prosecuting the action, and shall not be bound by an act of the
person bringing the action. Such person shall have the right to continue as a party
to the action, subject to the limitations set forth in paragraph (2).
(2)
(A)
The Government may dismiss the action notwithstanding the objections of
the person initiating the action if the person has been notified by the
Government of the filing of the motion and the court has provided the
person with an opportunity for a hearing on the motion.
(B)
The Government may settle the action with the defendant notwithstanding
the objections of the person initiating the action if the court determines,
after a hearing, that the proposed settlement is fair, adequate, and
reasonable under all the circumstances. Upon a showing of good cause,
such hearing may be held in camera.
(C)
Upon a showing by the Government that unrestricted participation during
the course of the litigation by the person initiating the action would
-5-
interfere with or unduly delay the Government’s prosecution of the case,
or would be repetitious, irrelevant, or for purposes of harassment, the court
may, in its discretion, impose limitations on the person’s participation,
such as—
(D)
(i)
limiting the number of witnesses the person may call;
(ii)
limiting the length of the testimony of such witnesses;
(iii)
limiting the person’s cross-examination of witnesses; or
(iv)
otherwise limiting the participation by the person in the litigation.
Upon a showing by the defendant that unrestricted participation during the
course of the litigation by the person initiating the action would be for
purposes of harassment or would cause the defendant undue burden or
unnecessary expense, the court may limit the participation by the person in
the litigation.
(3)
If the Government elects not to proceed with the action, the person who initiated
the action shall have the right to conduct the action. If the Government so
requests, it shall be served with copies of all pleadings filed in the action and shall
be supplied with copies of all deposition transcripts (at the Government’s
expense). When a person proceeds with the action, the court, without limiting the
status and rights of the person initiating the action, may nevertheless permit the
Government to intervene at a later date upon a showing of good cause.
(4)
Whether or not the Government proceeds with the action, upon a showing by the
Government that certain actions of discovery by the person initiating the action
would interfere with the Government’s investigation or prosecution of a criminal
or civil matter arising out of the same facts, the court may stay such discovery for
a period of not more than 60 days. Such a showing shall be conducted in camera.
The court may extend the 60-day period upon a further showing in camera that the
Government has pursued the criminal or civil investigation or proceedings with
reasonable diligence and any proposed discovery in the civil action will interfere
with the ongoing criminal or civil investigation or proceedings.
5)
Notwithstanding subsection (b), the Government may elect to pursue its claim
through any alternate remedy available to the Government, including any
administrative proceeding to determine a civil money penalty. If any such
alternate remedy is pursued in another proceeding, the person initiating the action
shall have the same rights in such proceeding as such person would have had if
the action had continued under this section. Any finding of fact or conclusion of
law made in such other proceeding that has become final shall be conclusive on
all parties to an action under this section. For purposes of the preceding sentence,
a finding or conclusion is final if it has been finally determined on appeal to the
appropriate court of the United States, if all time for filing such an appeal with
-6-
respect to the finding or conclusion has expired, or if the finding or conclusion is
not subject to judicial review.
(d)
2
Award to Qui Tam Plaintiff.—
(1)
If the Government proceeds with an action brought by a person under subsection
(b), such person shall, subject to the second sentence of this paragraph, receive at
least 15 percent but not more than 25 percent of the proceeds of the action or
settlement of the claim, depending upon the extent to which the person
substantially contributed to the prosecution of the action. Where the action is one
which the court finds to be based primarily on disclosures of specific information
(other than information provided by the person bringing the action) relating to
allegations or transactions in a criminal, civil, or administrative hearing, in a
congressional, administrative, or Government[2] Accounting Office report,
hearing, audit, or investigation, or from the news media, the court may award
such sums as it considers appropriate, but in no case more than 10 percent of the
proceeds, taking into account the significance of the information and the role of
the person bringing the action in advancing the case to litigation. Any payment to
a person under the first or second sentence of this paragraph shall be made from
the proceeds. Any such person shall also receive an amount for reasonable
expenses which the court finds to have been necessarily incurred, plus reasonable
attorneys’ fees and costs. All such expenses, fees, and costs shall be awarded
against the defendant.
(2)
If the Government does not proceed with an action under this section, the person
bringing the action or settling the claim shall receive an amount which the court
decides is reasonable for collecting the civil penalty and damages. The amount
shall be not less than 25 percent and not more than 30 percent of the proceeds of
the action or settlement and shall be paid out of such proceeds. Such person shall
also receive an amount for reasonable expenses which the court finds to have
been necessarily incurred, plus reasonable attorneys’ fees and costs. All such
expenses, fees, and costs shall be awarded against the defendant.
(3)
Whether or not the Government proceeds with the action, if the court finds that
the action was brought by a person who planned and initiated the violation of
section 3729 upon which the action was brought, then the court may, to the extent
the court considers appropriate, reduce the share of the proceeds of the action
which the person would otherwise receive under paragraph (1) or (2) of this
subsection, taking into account the role of that person in advancing the case to
litigation and any relevant circumstances pertaining to the violation. If the person
bringing the action is convicted of criminal conduct arising from his or her role in
the violation of section 3729, that person shall be dismissed from the civil action
and shall not receive any share of the proceeds of the action. Such dismissal shall
not prejudice the right of the United States to continue the action, represented by
the Department of Justice.
So in original. Probably should be “General”.
-7-
(4)
(e)
If the Government does not proceed with the action and the person bringing the
action conducts the action, the court may award to the defendant its reasonable
attorneys’ fees and expenses if the defendant prevails in the action and the court
finds that the claim of the person bringing the action was clearly frivolous, clearly
vexatious, or brought primarily for purposes of harassment.
Certain Actions Barred.—
(1)
No court shall have jurisdiction over an action brought by a former or present
member of the armed forces under subsection (b) of this section against a member
of the armed forces arising out of such person’s service in the armed forces.
(2)
(3)
(A)
No court shall have jurisdiction over an action brought under subsection
(b) against a Member of Congress, a member of the judiciary, or a senior
executive branch official if the action is based on evidence or information
known to the Government when the action was brought.
(B)
For purposes of this paragraph, “senior executive branch official” means
any officer or employee listed in paragraphs (1) through (8) of section
101(f) of the Ethics in Government Act of 1978 (5 U.S.C. App.).
In no event may a person bring an action under subsection (b) which is based
upon allegations or transactions which are the subject of a civil suit or an
administrative civil money penalty proceeding in which the Government is
already a party.
(4)
(A)
(B)
The court shall dismiss an action or claim under this section, unless
opposed by the Government, if substantially the same allegations or
transactions as alleged in the action or claim were publicly disclosed—
(i)
in a Federal criminal, civil, or administrative hearing in which the
Government or its agent is a party;
(ii)
in a congressional, Government Accountability Office, or other
Federal report, hearing, audit, or investigation; or
(iii)
from the news media, unless the action is brought by the Attorney
General or the person bringing the action is an original source of
the information.
For purposes of this paragraph, “original source” means an individual who
either (i) prior to a public disclosure under subsection (e)(4)(a), has
voluntarily disclosed to the Government the information on which
allegations or transactions in a claim are based, or (2) who has knowledge
-8-
that is independent of and materially adds to the publicly disclosed
allegations or transactions, and who has voluntarily provided the
information to the Government before filing an action under this section.
(f)
Government Not Liable for Certain Expenses.— The Government is not liable
for expenses which a person incurs in bringing an action under this section.
(g)
Fees and Expenses to Prevailing Defendant.— In civil actions brought under
this section by the United States, the provisions of section 2412(d) of title 28 shall
apply.
(h)
Relief From Retaliatory Actions.—
(1)
In general.— Any employee, contractor, or agent shall be entitled to all
relief necessary to make that employee, contractor, or agent whole, if that
employee, contractor, or agent is discharged, demoted, suspended,
threatened, harassed, or in any other manner discriminated against in the
terms and conditions of employment because of lawful acts done by the
employee, contractor, agent or associated others in furtherance of an
action under this section or other efforts to stop 1 or more violations of
this subchapter.
(2)
Relief.— Relief under paragraph (1) shall include reinstatement with the same
seniority status that employee, contractor, or agent would have had but for the
discrimination, 2 times the amount of back pay, interest on the back pay, and
compensation for any special damages sustained as a result of the discrimination,
including litigation costs and reasonable attorneys’ fees. An action under this
subsection may be brought in the appropriate district court of the United States for
the relief provided in this subsection.
(3)
Limitation on bringing civil action.— A civil action under this subsection may
not be brought more than 3 years after the date when the retaliation occurred.
31 USC § 3731 - False claims procedure
(a)
A subpena requiring the attendance of a witness at a trial or hearing conducted under
section 3730 of this title may be served at any place in the United States.
(b)
A civil action under section 3730 may not be brought—
(1)
more than 6 years after the date on which the violation of section 3729 is
committed, or
(2)
more than 3 years after the date when facts material to the right of action are
known or reasonably should have been known by the official of the United States
charged with responsibility to act in the circumstances, but in no event more than
10 years after the date on which the violation is committed, whichever occurs last.
-9-
(c)
If the Government elects to intervene and proceed with an action brought under
3730(b),[3] the Government may file its own complaint or amend the complaint of a
person who has brought an action under section 3730(b) to clarify or add detail to the
claims in which the Government is intervening and to add any additional claims with
respect to which the Government contends it is entitled to relief. For statute of limitations
purposes, any such Government pleading shall relate back to the filing date of the
complaint of the person who originally brought the action, to the extent that the claim of
the Government arises out of the conduct, transactions, or occurrences set forth, or
attempted to be set forth, in the prior complaint of that person.
(d)
In any action brought under section 3730, the United States shall be required to prove all
essential elements of the cause of action, including damages, by a preponderance of the
evidence.
(e)
Notwithstanding any other provision of law, the Federal Rules of Criminal Procedure, or
the Federal Rules of Evidence, a final judgment rendered in favor of the United States in
any criminal proceeding charging fraud or false statements, whether upon a verdict after
trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying
the essential elements of the offense in any action which involves the same transaction as
in the criminal proceeding and which is brought under subsection (a) or (b) of section
3730.
31 USC § 3732 - False claims jurisdiction
(a)
Actions Under Section 3730.— Any action under section 3730 may be brought in any
judicial district in which the defendant or, in the case of multiple defendants, any one
defendant can be found, resides, transacts business, or in which any act proscribed by
section 3729 occurred. A summons as required by the Federal Rules of Civil Procedure
shall be issued by the appropriate district court and served at any place within or outside
the United States.
(b)
Claims Under State Law.— The district courts shall have jurisdiction over any action
brought under the laws of any State for the recovery of funds paid by a State or local
government if the action arises from the same transaction or occurrence as an action
brought under section 3730.
(c)
Service on State or Local Authorities.— With respect to any State or local government
that is named as a co-plaintiff with the United States in an action brought under
subsection (b), a seal on the action ordered by the court under section 3730(b) shall not
preclude the Government or the person bringing the action from serving the complaint,
any other pleadings, or the written disclosure of substantially all material evidence and
information possessed by the person bringing the action on the law enforcement
authorities that are authorized under the law of that State or local government to
investigate and prosecute such actions on behalf of such governments, except that such
3
So in original. Probably should be preceded by “section”.
- 10 -
seal applies to the law enforcement authorities so served to the same extent as the seal
applies to other parties in the action.
31 USC § 3733 - Civil investigative demands
(a)
In General.—
(1)
(2)
Issuance and service.— Whenever the Attorney General, or a designee (for
purposes of this section), has reason to believe that any person may be in
possession, custody, or control of any documentary material or information
relevant to a false claims law investigation, the Attorney General, or a designee,
may, before commencing a civil proceeding under section 3730(a) or other false
claims law, or making an election under section 3730(b), issue in writing and
cause to be served upon such person, a civil investigative demand requiring such
person—
(A)
to produce such documentary material for inspection and copying,
(B)
to answer in writing written interrogatories with respect to such
documentary material or information,
(C)
to give oral testimony concerning such documentary material or
information, or
(D)
to furnish any combination of such material, answers, or testimony. The
Attorney General may delegate the authority to issue civil investigative
demands under this subsection. Whenever a civil investigative demand is
an express demand for any product of discovery, the Attorney General, the
Deputy Attorney General, or an Assistant Attorney General shall cause to
be served, in any manner authorized by this section, a copy of such
demand upon the person from whom the discovery was obtained and shall
notify the person to whom such demand is issued of the date on which
such copy was served. Any information obtained by the Attorney General
or a designee of the Attorney General under this section may be shared
with any qui tam relator if the Attorney General or designee determine it is
necessary as part of any false claims act investigation.
Contents and deadlines.—
(A)
Each civil investigative demand issued under paragraph (1) shall state the
nature of the conduct constituting the alleged violation of a false claims
law which is under investigation, and the applicable provision of law
alleged to be violated.
(B)
If such demand is f
demand shall—
or the production of documentary material, the
- 11 -
(C)
(D)
(E)
(i)
describe each class of documentary material to be produced with
such definiteness and certainty as to permit such material to be
fairly identified;
(ii)
prescribe a return date for each such class which will provide a
reasonable period of time within which the material so demanded
may be assembled and made available for inspection and copying;
and
(iii)
identify the false claims law investigator to whom such material
shall be made available.
If such demand is for answers to written interrogatories, the demand
shall—
(i)
set forth with specificity the written interrogatories to be answered;
(ii)
prescribe dates at which time answers to written interrogatories
shall be submitted; and
(iii)
identify the false claims law investigator to whom such answers
shall be submitted.
If such demand is for the giving of oral testimony, the demand shall—
(i)
prescribe a date, time, and place at which oral testimony shall be
commenced;
(ii)
identify a false claims law investigator who shall conduct the
examination and the custodian to whom the transcript of such
examination shall be submitted;
(iii)
specify that such attendance and testimony are necessary to the
conduct of the investigation;
(iv)
notify the person receiving the demand of the right to be
accompanied by an attorney and any other representative; and
(v)
describe the general purpose for which the demand is being issued
and the general nature of the testimony, including the primary
areas of inquiry, which will be taken pursuant to the demand.
Any civil investigative demand issued under this section which is an
express demand for any product of discovery shall not be returned or
returnable until 20 days after a copy of such demand has been served upon
the person from whom the discovery was obtained.
- 12 -
(b)
The date prescribed for the commencement of oral testimony pursuant to a
civil investigative demand issued under this section shall be a date which
is not less than seven days after the date on which demand is received,
unless the Attorney General or an Assistant Attorney General designated
by the Attorney General determines that exceptional circumstances are
present which warrant the commencement of such testimony within a
lesser period of time.
(G)
The Attorney General shall not authorize the issuance under this section of
more than one civil investigative demand for oral testimony by the same
person unless the person requests otherwise or unless the Attorney
General, after investigation, notifies that person in writing that an
additional demand for oral testimony is necessary.
Protected Material or Information.—
(1)
(2)
(c)
(F)
In general.— A civil investigative demand issued under subsection (a) may not
require the production of any documentary material, the submission of any
answers to written interrogatories, or the giving of any oral testimony if such
material, answers, or testimony would be protected from disclosure under—
(A)
the standards applicable to subpoenas or subpoenas duces tecum issued by
a court of the United States to aid in a grand jury investigation; or
(B)
the standards applicable to discovery requests under the Federal Rules of
Civil Procedure, to the extent that the application of such standards to any
such demand is appropriate and consistent with the provisions and
purposes of this section.
Effect on other orders, rules, and laws.— Any such demand which is an
express demand for any product of discovery supersedes any inconsistent order,
rule, or provision of law (other than this section) preventing or restraining
disclosure of such product of discovery to any person. Disclosure of any product
of discovery pursuant to any such express demand does not constitute a waiver of
any right or privilege which the person making such disclosure may be entitled to
invoke to resist discovery of trial preparation materials.
Service; Jurisdiction.—
(1)
By whom served.— Any civil investigative demand issued under subsection (a)
may be served by a false claims law investigator, or by a United States marshal or
a deputy marshal, at any place within the territorial jurisdiction of any court of the
United States.
(2)
Service in foreign countries.— Any such demand or any petition filed under
subsection (j) may be served upon any person who is not found within the
territorial jurisdiction of any court of the United States in such manner as the
Federal Rules of Civil Procedure prescribe for service in a foreign country. To the
- 13 -
extent that the courts of the United States can assert jurisdiction over any such
person consistent with due process, the United States District Court for the
District of Columbia shall have the same jurisdiction to take any action respecting
compliance with this section by any such person that such court would have if
such person were personally within the jurisdiction of such court.
(d)
Service Upon Legal Entities and Natural Persons.—
(1)
(2)
Legal entities.— Service of any civil investigative demand issued under
subsection (a) or of any petition filed under subsection (j) may be made upon a
partnership, corporation, association, or other legal entity by—
(A)
delivering an executed copy of such demand or petition to any partner,
executive officer, managing agent, or general agent of the partnership,
corporation, association, or entity, or to any agent authorized by
appointment or by law to receive service of process on behalf of such
partnership, corporation, association, or entity;
(B)
delivering an executed copy of such demand or petition to the principal
office or place of business of the partnership, corporation, association, or
entity; or
(C)
depositing an executed copy of such demand or petition in the United
States mails by registered or certified mail, with a return receipt requested,
addressed to such partnership, corporation, association, or entity at its
principal office or place of business.
Natural persons.— Service of any such demand or petition may be made upon
any natural person by—
(A)
delivering an executed copy of such demand or petition to the person; or
(B)
depositing an executed copy of such demand or petition in the United
States mails by registered or certified mail, with a return receipt requested,
addressed to the person at the person’s residence or principal office or
place of business.
(e)
Proof of Service.— A verified return by the individual serving any civil investigative
demand issued under subsection (a) or any petition filed under subsection (j) setting forth
the manner of such service shall be proof of such service. In the case of service by
registered or certified mail, such return shall be accompanied by the return post office
receipt of delivery of such demand.
(f)
Documentary Material.—
(1)
Sworn certificates.— The production of documentary material in response to a
civil investigative demand served under this section shall be made under a sworn
certificate, in such form as the demand designates, by—
- 14 -
(2)
(g)
(h)
(A)
in the case of a natural person, the person to whom the demand is directed,
or
(B)
in the case of a person other than a natural person, a person having
knowledge of the facts and circumstances relating to such production and
authorized to act on behalf of such person. The certificate shall state that
all of the documentary material required by the demand and in the
possession, custody, or control of the person to whom the demand is
directed has been produced and made available to the false claims law
investigator identified in the demand.
Production of materials.— Any person upon whom any civil investigative
demand for the production of documentary material has been served under this
section shall make such material available for inspection and copying to the false
claims law investigator identified in such demand at the principal place of
business of such person, or at such other place as the false claims law investigator
and the person thereafter may agree and prescribe in writing, or as the court may
direct under subsection (j)(1). Such material shall be made so available on the
return date specified in such demand, or on such later date as the false claims law
investigator may prescribe in writing. Such person may, upon written agreement
between the person and the false claims law investigator, substitute copies for
originals of all or any part of such material.
Interrogatories.— Each interrogatory in a civil investigative demand served under this
section shall be answered separately and fully in writing under oath and shall be
submitted under a sworn certificate, in such form as the demand designates, by—
(1)
in the case of a natural person, the person to whom the demand is directed, or
(2)
in the case of a person other than a natural person, the person or persons
responsible for answering each interrogatory. If any interrogatory is objected to,
the reasons for the objection shall be stated in the certificate instead of an answer.
The certificate shall state that all information required by the demand and in the
possession, custody, control, or knowledge of the person to whom the demand is
directed has been submitted. To the extent that any information is not furnished,
the information shall be identified and reasons set forth with particularity
regarding the reasons why the information was not furnished.
Oral Examinations.—
(1)
Procedures.— The examination of any person pursuant to a civil investigative
demand for oral testimony served under this section shall be taken before an
officer authorized to administer oaths and affirmations by the laws of the United
States or of the place where the examination is held. The officer before whom the
testimony is to be taken shall put the witness on oath or affirmation and shall,
personally or by someone acting under the direction of the officer and in the
officer’s presence, record the testimony of the witness. The testimony shall be
- 15 -
taken stenographically and shall be transcribed. When the testimony is fully
transcribed, the officer before whom the testimony is taken shall promptly
transmit a copy of the transcript of the testimony to the custodian. This subsection
shall not preclude the taking of testimony by any means authorized by, and in a
manner consistent with, the Federal Rules of Civil Procedure.
(2)
Persons present.— The false claims law investigator conducting the examination
shall exclude from the place where the examination is held all persons except the
person giving the testimony, the attorney for and any other representative of the
person giving the testimony, the attorney for the Government, any person who
may be agreed upon by the attorney for the Government and the person giving the
testimony, the officer before whom the testimony is to be taken, and any
stenographer taking such testimony.
(3)
Where testimony taken.— The oral testimony of any person taken pursuant to a
civil investigative demand served under this section shall be taken in the judicial
district of the United States within which such person resides, is found, or
transacts business, or in such other place as may be agreed upon by the false
claims law investigator conducting the examination and such person.
(4)
Transcript of testimony.— When the testimony is fully transcribed, the false
claims law investigator or the officer before whom the testimony is taken shall
afford the witness, who may be accompanied by counsel, a reasonable
opportunity to examine and read the transcript, unless such examination and
reading are waived by the witness. Any changes in form or substance which the
witness desires to make shall be entered and identified upon the transcript by the
officer or the false claims law investigator, with a statement of the reasons given
by the witness for making such changes. The transcript shall then be signed by the
witness, unless the witness in writing waives the signing, is ill, cannot be found,
or refuses to sign. If the transcript is not signed by the witness within 30 days
after being afforded a reasonable opportunity to examine it, the officer or the false
claims law investigator shall sign it and state on the record the fact of the waiver,
illness, absence of the witness, or the refusal to sign, together with the reasons, if
any, given therefor.
(5)
Certification and delivery to custodian.— The officer before whom the
testimony is taken shall certify on the transcript that the witness was sworn by the
officer and that the transcript is a true record of the testimony given by the
witness, and the officer or false claims law investigator shall promptly deliver the
transcript, or send the transcript by registered or certified mail, to the custodian.
(6)
Furnishing or inspection of transcript by witness.— Upon payment of
reasonable charges therefor, the false claims law investigator shall furnish a copy
of the transcript to the witness only, except that the Attorney General, the Deputy
Attorney General, or an Assistant Attorney General may, for good cause, limit
such witness to inspection of the official transcript of the witness’ testimony.
- 16 -
(7)
(8)
Conduct of oral testimony.—
(A)
Any person compelled to appear for oral testimony under a civil
investigative demand issued under subsection (a) may be accompanied,
represented, and advised by counsel. Counsel may advise such person, in
confidence, with respect to any question asked of such person. Such
person or counsel may object on the record to any question, in whole or in
part, and shall briefly state for the record the reason for the objection. An
objection may be made, received, and entered upon the record when it is
claimed that such person is entitled to refuse to answer the question on the
grounds of any constitutional or other legal right or privilege, including
the privilege against self-incrimination. Such person may not otherwise
object to or refuse to answer any question, and may not directly or through
counsel otherwise interrupt the oral examination. If such person refuses to
answer any question, a petition may be filed in the district court of the
United States under subsection (j)(1) for an order compelling such person
to answer such question.
(B)
If such person refuses to answer any question on the grounds of the
privilege against self-incrimination, the testimony of such person may be
compelled in accordance with the provisions of part V of title 18.
Witness fees and allowances.— Any person appearing for oral testimony under a
civil investigative demand issued under subsection (a) shall be entitled to the
same fees and allowances which are paid to witnesses in the district courts of the
United States.
(i)
Custodians of Documents, Answers, and Transcripts.—
(1)
Designation.— The Attorney General shall designate a false claims law
investigator to serve as custodian of documentary material, answers to
interrogatories, and transcripts of oral testimony received under this section, and
shall designate such additional false claims law investigators as the Attorney
General determines from time to time to be necessary to serve as deputies to the
custodian.
(2)
Responsibility for materials; disclosure.—
(A)
A false claims law investigator who receives any documentary material,
answers to interrogatories, or transcripts of oral testimony under this
section shall transmit them to the custodian. The custodian shall take
physical possession of such material, answers, or transcripts and shall be
responsible for the use made of them and for the return of documentary
material under paragraph (4).
(B)
The custodian may cause the preparation of such copies of such
documentary material, answers to interrogatories, or transcripts of oral
testimony as may be required for official use by any false claims law
- 17 -
investigator, or other officer or employee of the Department of Justice.
Such material, answers, and transcripts may be used by any such
authorized false claims law investigator or other officer or employee in
connection with the taking of oral testimony under this section.
(3)
(C)
Except as otherwise provided in this subsection, no documentary material,
answers to interrogatories, or transcripts of oral testimony, or copies
thereof, while in the possession of the custodian, shall be available for
examination by any individual other than a false claims law investigator or
other officer or employee of the Department of Justice authorized under
subparagraph (B). The prohibition in the preceding sentence on the
availability of material, answers, or transcripts shall not apply if consent is
given by the person who produced such material, answers, or transcripts,
or, in the case of any product of discovery produced pursuant to an express
demand for such material, consent is given by the person from whom the
discovery was obtained. Nothing in this subparagraph is intended to
prevent disclosure to the Congress, including any committee or
subcommittee of the Congress, or to any other agency of the United States
for use by such agency in furtherance of its statutory responsibilities.
(D)
While in the possession of the custodian and under such reasonable terms
and conditions as the Attorney General shall prescribe—
(i)
documentary material and answers to interrogatories shall be
available for examination by the person who produced such
material or answers, or by a representative of that person
authorized by that person to examine such material and answers;
and
(ii)
transcripts of oral testimony shall be available for examination by
the person who produced such testimony, or by a representative of
that person authorized by that person to examine such transcripts.
Use of material, answers, or transcripts in other proceedings.— Whenever
any attorney of the Department of Justice has been designated to appear before
any court, grand jury, or Federal agency in any case or proceeding, the custodian
of any documentary material, answers to interrogatories, or transcripts of oral
testimony received under this section may deliver to such attorney such material,
answers, or transcripts for official use in connection with any such case or
proceeding as such attorney determines to be required. Upon the completion of
any such case or proceeding, such attorney shall return to the custodian any such
material, answers, or transcripts so delivered which have not passed into the
control of such court, grand jury, or agency through introduction into the record
of such case or proceeding.
- 18 -
(4)
(5)
(j)
Conditions for return of material.— If any documentary material has been
produced by any person in the course of any false claims law investigation
pursuant to a civil investigative demand under this section, and—
(A)
any case or proceeding before the court or grand jury arising out of such
investigation, or any proceeding before any Federal agency involving such
material, has been completed, or
(B)
no case or proceeding in which such material may be used has been
commenced within a reasonable time after completion of the examination
and analysis of all documentary material and other information assembled
in the course of such investigation, the custodian shall, upon written
request of the person who produced such material, return to such person
any such material (other than copies furnished to the false claims law
investigator under subsection (f)(2) or made for the Department of Justice
under paragraph (2)(B)) which has not passed into the control of any
court, grand jury, or agency through introduction into the record of such
case or proceeding.
Appointment of successor custodians.— In the event of the death, disability, or
separation from service in the Department of Justice of the custodian of any
documentary material, answers to interrogatories, or transcripts of oral testimony
produced pursuant to a civil investigative demand under this section, or in the
event of the official relief of such custodian from responsibility for the custody
and control of such material, answers, or transcripts, the Attorney General shall
promptly—
(A)
designate another false claims law investigator to serve as custodian of
such material, answers, or transcripts, and
(B)
transmit in writing to the person who produced such material, answers, or
testimony notice of the identity and address of the successor so designated.
Any person who is designated to be a successor under this paragraph shall
have, with regard to such material, answers, or transcripts, the same duties
and responsibilities as were imposed by this section upon that person’s
predecessor in office, except that the successor shall not be held
responsible for any default or dereliction which occurred before that
designation.
Judicial Proceedings.—
(1)
Petition for enforcement.— Whenever any person fails to comply with any civil
investigative demand issued under subsection (a), or whenever satisfactory
copying or reproduction of any material requested in such demand cannot be done
and such person refuses to surrender such material, the Attorney General may file,
in the district court of the United States for any judicial district in which such
person resides, is found, or transacts business, and serve upon such person a
- 19 -
petition for an order of such court for the enforcement of the civil investigative
demand.
(2)
Petition to modify or set aside demand.—
(A)
(B)
(3)
Any person who has received a civil investigative demand issued under
subsection (a) may file, in the district court of the United States for the
judicial district within which such person resides, is found, or transacts
business, and serve upon the false claims law investigator identified in
such demand a petition for an order of the court to modify or set aside
such demand. In the case of a petition addressed to an express demand for
any product of discovery, a petition to modify or set aside such demand
may be brought only in the district court of the United States for the
judicial district in which the proceeding in which such discovery was
obtained is or was last pending. Any petition under this subparagraph must
be filed—
(i)
within 20 days after the date of service of the civil investigative
demand, or at any time before the return date specified in the
demand, whichever date is earlier, or
(ii)
within such longer period as may be prescribed in writing by any
false claims law investigator identified in the demand.
The petition shall specify each ground upon which the petitioner relies in
seeking relief under subparagraph (A), and may be based upon any failure
of the demand to comply with the provisions of this section or upon any
constitutional or other legal right or privilege of such person. During the
pendency of the petition in the court, the court may stay, as it deems
proper, the running of the time allowed for compliance with the demand,
in whole or in part, except that the person filing the petition shall comply
with any portions of the demand not sought to be modified or set aside.
Petition to modify or set aside demand for product of discovery.—
(A)
In the case of any civil investigative demand issued under subsection (a)
which is an express demand for any product of discovery, the person from
whom such discovery was obtained may file, in the district court of the
United States for the judicial district in which the proceeding in which
such discovery was obtained is or was last pending, and serve upon any
false claims law investigator identified in the demand and upon the
recipient of the demand, a petition for an order of such court to modify or
set aside those portions of the demand requiring production of any such
product of discovery. Any petition under this subparagraph must be
filed—
- 20 -
(B)
(k)
(i)
within 20 days after the date of service of the civil investigative
demand, or at any time before the return date specified in the
demand, whichever date is earlier, or
(ii)
within such longer period as may be prescribed in writing by any
false claims law investigator identified in the demand.
The petition shall specify each ground upon which the petitioner relies in
seeking relief under subparagraph (A), and may be based upon any failure
of the portions of the demand from which relief is sought to comply with
the provisions of this section, or upon any constitutional or other legal
right or privilege of the petitioner. During the pendency of the petition, the
court may stay, as it deems proper, compliance with the demand and the
running of the time allowed for compliance with the demand.
(4)
Petition to require performance by custodian of duties.— At any time during
which any custodian is in custody or control of any documentary material or
answers to interrogatories produced, or transcripts of oral testimony given, by any
person in compliance with any civil investigative demand issued under subsection
(a), such person, and in the case of an express demand for any product of
discovery, the person from whom such discovery was obtained, may file, in the
district court of the United States for the judicial district within which the office
of such custodian is situated, and serve upon such custodian, a petition for an
order of such court to require the performance by the custodian of any duty
imposed upon the custodian by this section.
(5)
Jurisdiction.— Whenever any petition is filed in any district court of the United
States under this subsection, such court shall have jurisdiction to hear and
determine the matter so presented, and to enter such order or orders as may be
required to carry out the provisions of this section. Any final order so entered
shall be subject to appeal under section 1291 of title 28. Any disobedience of any
final order entered under this section by any court shall be punished as a contempt
of the court.
(6)
Applicability of federal rules of civil procedure.— The Federal Rules of Civil
Procedure shall apply to any petition under this subsection, to the extent that such
rules are not inconsistent with the provisions of this section.
Disclosure Exemption.— Any documentary material, answers to written interrogatories,
or oral testimony provided under any civil investigative demand issued under subsection
(a) shall be exempt from disclosure under section 552 of title 5.
(l)
Definitions.— For purposes of this section—
(1)
the term “false claims law” means—
(A)
this section and sections 3729 through 3732; and
- 21 -
(B)
any Act of Congress enacted after the date of the enactment of this section
which prohibits, or makes available to the United States in any court of the
United States any civil remedy with respect to, any false claim against,
bribery of, or corruption of any officer or employee of the United States;
(2)
the term “false claims law investigation” means any inquiry conducted by any
false claims law investigator for the purpose of ascertaining whether any person is
or has been engaged in any violation of a false claims law;
(3)
the term “false claims law investigator” means any attorney or investigator
employed by the Department of Justice who is charged with the duty of enforcing
or carrying into effect any false claims law, or any officer or employee of the
United States acting under the direction and supervision of such attorney or
investigator in connection with a false claims law investigation;
(4)
the term “person” means any natural person, partnership, corporation, association,
or other legal entity, including any State or political subdivision of a State;
(5)
the term “documentary material” includes the original or any copy of any book,
record, report, memorandum, paper, communication, tabulation, chart, or other
document, or data compilations stored in or accessible through computer or other
information retrieval systems, together with instructions and all other materials
necessary to use or interpret such data compilations, and any product of
discovery;
(6)
the term “custodian” means the custodian, or any deputy custodian, designated by
the Attorney General under subsection (i)(1);
(7)
the term “product of discovery” includes—
(8)
(A)
the original or duplicate of any deposition, interrogatory, document, thing,
result of the inspection of land or other property, examination, or
admission, which is obtained by any method of discovery in any judicial
or administrative proceeding of an adversarial nature;
(B)
any digest, analysis, selection, compilation, or derivation of any item listed
in subparagraph (A); and
(C)
any index or other manner of access to any item listed in subparagraph
(A); and
the term “official use” means any use that is consistent with the law, and the
regulations and policies of the Department of Justice, including use in connection
with internal Department of Justice memoranda and reports; communications
between the Department of Justice and a Federal, State, or local government
agency, or a contractor of a Federal, State, or local government agency,
undertaken in furtherance of a Department of Justice investigation or prosecution
of a case; interviews of any qui tam relator or other witness; oral examinations;
- 22 -
depositions; preparation for and response to civil discovery requests; introduction
into the record of a case or proceeding; applications, motions, memoranda and
briefs submitted to a court or other tribunal; and communications with
Government investigators, auditors, consultants and experts, the counsel of other
parties, arbitrators and mediators, concerning an investigation, case or proceeding.
- 23 -
NEW YORK FALSE CLAIMS ACT
NEW YORK STATE FINANCE LAW, ART. XIII (2010)
§ 187. SHORT TITLE
This article shall be known and may be cited as the "New York false claims act".
§ 188. DEFINITIONS
As used in this article, the following terms shall mean:
1.
"Claim"
(a)
means any request or demand, whether under a contract or otherwise, for money or
property that:
(i)
is presented to an officer, employee or agent of the state or a local
government; or
(ii)
is made to a contractor, grantee, or other recipient, if the money or property is
to be spent or used on the state or a local government's behalf or to advance a
state or local government program or interest, and if the state or local
government
(A) provides or has provided any portion of the money or property requested
or demanded; or
(B) will reimburse such contractor, grantee, or other recipient for any
portion of the money or property which is requested or demanded;
(b)
does not include requests or demands for money or property that the state or a local
government has already paid to an individual as compensation for government
employment or as an income subsidy with no restrictions on that individual's use of
the money or property.
2.
"False claim" means any claim which is, either in whole or part, false or fraudulent.
3.
"Knowing and knowingly"
(a)
means that a person, with respect to information:
(i)
has actual knowledge of the information;
(ii)
acts in deliberate ignorance of the truth or falsity of the information; or
(iii) acts in reckless disregard of the truth or falsity of the information; and
- 24 -
(b)
require no proof of specific intent to defraud, provided, however that acts occurring
by mistake or as a result of mere negligence are not covered by this article.
4.
"Obligation" means an established duty, whether or not fixed, arising from an express or
implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or
similar relationship, from statute or regulation, or from the retention of any overpayment.
5.
"Material" means having a natural tendency to influence, or be capable of influencing the
payment or receipt of money or property.
6.
"Local government" means any New York county, city, town, village, school district,
board of cooperative educational services, local public benefit corporation or other
municipal corporation or political subdivision of the state, or of such local government.
7.
"Original source" means a person who:
(a)
prior to a public disclosure under paragraph (b) of subdivision nine of section one
hundred ninety of this article has voluntarily disclosed to the state or a local
government the information on which allegations or transactions in a cause of
action are based; or
(b)
who has knowledge that is independent of and materially adds to the publicly
disclosed allegations or transactions, and who has voluntarily provided the
information to the state or a local government before or simultaneous with filing an
action under this article.
8.
"Person" means any natural person, partnership, corporation, association or any other
legal entity or individual, other than the state or a local government.
9.
"State" means the state of New York and any state department, board, bureau, division,
commission, committee, public benefit corporation, public authority, council, office or
other governmental entity performing a governmental or proprietary function for the
state.
§ 189. LIABILITY FOR CERTAIN ACTS
1.
Subject to the provisions of subdivision two of this section, any person who:
(a)
knowingly presents, or causes to be presented a false or fraudulent claim for
payment or approval;
(b)
knowingly makes, uses, or causes to be made or used, a false record or statement
material to a false or fraudulent claim;
(c)
conspires to commit a violation of paragraph (a), (b), (d), (e), (f) or (g) of this
subdivision;
- 25 -
2.
(d)
has possession, custody, or control of property or money used, or to be used, by the
state or a local government and knowingly delivers, or causes to be delivered, less
than all of that money or property;
(e)
is authorized to make or deliver a document certifying receipt of property used, or
to be used, by the state or a local government and, intending to defraud the state or a
local government, makes or delivers the receipt without completely knowing that
the information on the receipt is true;
(f)
knowingly buys, or receives as a pledge of an obligation or debt, public property
from an officer or employee of the state or a local government knowing that the
officer or employee violates a provision of law when selling or pledging such
property; or
(g)
knowingly makes, uses, or causes to be made or used, a false record or statement
material to an obligation to pay or transmit money or property to the state or a local
government shall be liable to the state or a local government, as applicable, for a
civil penalty of not less than six thousand dollars and not more than twelve
thousand dollars, plus three times the amount of all damages, including
consequential damages, which the state or local government sustains because of the
act of that person.
The court may assess not more than two times the amount of damages sustained because
of the act of the person described in subdivision one of this section, if the court finds that:
(a)
the person committing the violation of this section had furnished all information
known to such person about the violation, to those officials responsible for
investigating false claims violations on behalf of the state and any local government
that sustained damages, within thirty days after the date on which such person first
obtained the information;
(b)
such person fully cooperated with any government investigation of such violation;
and
(c)
at the time such person furnished information about the violation, no criminal
prosecution, civil action, or administrative action had commenced with respect to
such violation, and the person did not have actual knowledge of the existence of an
investigation into such violation.
3.
A person who violates this section shall also be liable for the costs, including attorneys'
fees, of a civil action brought to recover any such penalty or damages.
4.(a)
This section shall apply to claims, records, or statements made under the tax law only if
(i)
the net income or sales of the person against whom the action is brought
equals or exceeds one million dollars for any taxable year subject to any
action brought pursuant to this article; and
- 26 -
(ii)
(b)
the damages pleaded in such action exceed three hundred and fifty thousand
dollars.
The attorney general shall consult with the commissioner of the department of
taxation and finance prior to filing or intervening in any action under this article
that is based on the filing of false claims, records or statements made under the tax
law. If the state declines to participate or to authorize participation by a local
government in such an action pursuant to subdivision two of section one hundred
ninety of this article, the qui tam plaintiff must obtain approval from the attorney
general before making any motion to compel the department of taxation and finance
to disclose tax records.
§ 190. CIVIL ACTIONS FOR FALSE CLAIMS
1.
Civil enforcement actions.
The attorney general shall have the authority to investigate violations under section one
hundred eighty-nine of this article. If the attorney general believes that a person has violated or is
violating such section, then the attorney general may bring a civil action on behalf of the people
of the state of New York or on behalf of a local government against such person. A local
government also shall have the authority to investigate violations that may have resulted in
damages to such local government under section one hundred eighty-nine of this article, and may
bring a civil action on its own behalf, or on behalf of any subdivision of such local government,
to recover damages sustained by such local government as a result of such violations. No action
may be filed pursuant to this subdivision against the federal government, the state or a local
government, or any officer or employee thereof acting in his or her official capacity. The
attorney general shall consult with the office of medicaid inspector general prior to filing any
action related to the medicaid program.
2.
Qui tam civil actions.
(a)
Any person may bring a qui tam civil action for a violation of section one hundred
eighty-nine of this article on behalf of the person and the people of the state of New York or a
local government. No action may be filed pursuant to this subdivision against the federal
government, the state or a local government, or any officer or employee thereof acting in his or
her official capacity. For purposes of subparagraphs (i) and (iv) of paragraph (a) of subdivision
eight of section seventy-three of the public officers law, any activity by a former government
employee in connection with the securing of rights, protections or benefits related to preparing or
filing an action under this article shall not be deemed to be an appearance or practice before any
agency.
(b)
A copy of the complaint and written disclosure of substantially all material
evidence and information the person possesses shall be served on the state pursuant to
subdivision one of section three hundred seven of the civil practice law and rules. Any complaint
filed in a court of the state of New York shall be filed in supreme court in camera, shall remain
under seal for at least sixty days, and shall not be served on the defendant until the court so
orders. The seal shall not preclude the attorney general, a local government, or the qui tam
- 27 -
plaintiff from serving the complaint, any other pleadings, or the written disclosure of
substantially all material evidence and information possessed by the person bringing the action,
on relevant state or local government agencies, or on law enforcement authorities of the state, a
local government, or other jurisdictions, so that the actions may be investigated or prosecuted,
except that such seal applies to the agencies or authorities so served to the same extent as the seal
applies to other parties in the action.
If the allegations in the complaint allege a violation of section one hundred eighty-nine of this
article involving damages to a local government, then the attorney general may at any time
provide a copy of such complaint and written disclosure to the attorney for such local
government; provided, however, that if the allegations in the complaint involve damages only to
a city with a population of one million or more, or only to the state and such a city, then the
attorney general shall provide such complaint and written disclosure to the corporation counsel
of such city within thirty days. The state may elect to supersede or intervene and proceed with
the action, or to authorize a local government that may have sustained damages to supersede or
intervene, within sixty days after it receives both the complaint and the material evidence and
information; provided, however, that if the allegations in the complaint involve damages only to
a city with a population of one million or more, then the attorney general may not supersede or
intervene in such action without the consent of the corporation counsel of such city.
The attorney general shall consult with the office of the medicaid inspector general prior to
superseding or intervening in any action related to the medicaid program. The attorney general
may, for good cause shown, move the court for extensions of the time during which the
complaint remains under seal under this subdivision. Any such motions may be supported by
affidavits or other submissions in camera.
(c)
Prior to the expiration of the sixty day period or any extensions obtained under
paragraph (b) of this subdivision, the attorney general shall notify the court that he or she:
(i)
intends to file a complaint against the defendant on behalf of the people of
the state of New York or a local government, and thereby be substituted as
the plaintiff in the action and convert the action in all respects from a qui
tam civil action brought by a private person into a civil enforcement action
by the attorney general under subdivision one of this section;
(ii)
intends to intervene in such action, as of right, so as to aid and assist the
plaintiff in the action; or
(iii) if the action involves damages sustained by a local government, intends to
grant the local government permission to:
(A) file and serve a complaint against the defendant, and thereby be
substituted as the plaintiff in the action and convert the action in all respects
from a qui tam civil action brought by a private person into a civil
enforcement action by the local government under subdivision one of this
section; or
- 28 -
(B) intervene in such action, as of right, so as to aid and assist the plaintiff
in the action. The attorney general shall provide the local government with a
copy of any such notification at the same time the court is notified.
(d)
If the state notifies the court that it intends to file a complaint against the
defendant and thereby be substituted as the plaintiff in the action, or to permit a local
government to do so, such complaint must be filed within thirty days after the notification to the
court. For statute of limitations purposes, any such complaint filed by the state or a local
government shall relate back to the filing date of the complaint of the qui tam plaintiff, to the
extent that the cause of action of the state or local government arises out of the conduct,
transactions, or occurrences set forth, or attempted to be set forth, in the prior complaint of the
qui tam plaintiff.
(e)
If the state notifies the court that it intends to intervene in the action, or to permit
a local government to do so, then such motion for intervention shall be filed within thirty days
after the notification to the court.
(f)
If the state declines to participate in the action or to authorize participation by a
local government, the qui tam action may proceed subject to judicial review under this section,
the civil practice law and rules, and other applicable law. The qui tam plaintiff shall provide the
state or any applicable local government with a copy of any document filed with the court on or
about the date it is filed, or any order issued by the court on or about the date it is issued. A qui
tam plaintiff shall notify the state or any applicable local government within five business days
of any decision, order or verdict resulting in judgment in favor of the state or local government.
3.
Time to answer.
If the state decides to participate in a qui tam action or to authorize the participation of a local
government, the court shall order that the qui tam complaint be unsealed and served at the time
of the filing of the complaint or intervention motion by the state or local government. After the
complaint is unsealed, or if a complaint is filed by the state or a local government pursuant to
subdivision one of this section, the defendant shall be served with the complaint and summons
pursuant to article three of the civil practice law and rules. A copy of any complaint which
alleges that damages were sustained by a local government shall also be served on such local
government. The defendant shall be required to respond to the summons and complaint within
the time allotted under rule three hundred twenty of the civil practice law and rules.
4.
Related actions.
When a person brings a qui tam action under this section, no person other than the attorney
general, or a local government attorney acting pursuant to subdivision one of this section or
paragraph (b) of subdivision two of this section, may intervene or bring a related civil action
based upon the facts underlying the pending action, unless such other person has first obtained
the permission of the attorney general to intervene or to bring such related action; provided,
however, that nothing in this subdivision shall be deemed to deny persons the right, upon leave
of court, to file briefs amicus curiae.
- 29 -
5.
Rights of the parties of qui tam actions.
(a) If the attorney general elects to convert the qui tam civil action into an attorney
general enforcement action, then the state shall have the primary responsibility for prosecuting
the action.
If the attorney general elects to intervene in the qui tam civil action then the state and the person
who commenced the action, and any local government which sustained damages and intervenes
in the action, shall share primary responsibility for prosecuting the action.
If the attorney general elects to permit a local government to convert the action into a civil
enforcement action, then the local government shall have primary responsibility for investigating
and prosecuting the action. If the action involves damages to a local government but not the
state, and the local government intervenes in the qui tam civil action, then the local government
and the person who commenced the action shall share primary responsibility for prosecuting the
action.
Under no circumstances shall the state or a local government be bound by an act of the person
bringing the original action. Such person shall have the right to continue as a party to the action,
subject to the limitations set forth in paragraph (b) of this subdivision. Under no circumstances
shall the state be bound by the act of a local government that intervenes in an action involving
damages to the state.
If neither the attorney general nor a local government intervenes in the qui tam action then the
qui tam plaintiff shall have the responsibility for prosecuting the action, subject to the attorney
general's right to intervene at a later date upon a showing of good cause.
(b) (i) The state may move to dismiss the action notwithstanding the objections of the
person initiating the action if the person has been served with the motion to dismiss and the court
has provided the person with an opportunity to be heard on the motion. If the action involves
damages to both the state and a local government, then the state shall consult with such local
government before moving to dismiss the action. If the action involves damages sustained by a
local government but not the state, then the local government may move to dismiss the action
notwithstanding the objections of the person initiating the action if the person has been served
with the motion to dismiss and the court has provided the person with an opportunity to be heard
on the motion.
(ii)
The state or a local government may settle the action with the defendant
notwithstanding the objections of the person initiating the action if the court determines, after an
opportunity to be heard, that the proposed settlement is fair, adequate, and reasonable with
respect to all parties under all the circumstances. Upon a showing of good cause, such
opportunity to be heard may be held in camera.
(iii)
Upon a showing by the attorney general or a local government that the original
plaintiff's unrestricted participation during the course of the litigation would interfere with or
unduly delay the prosecution of the case, or would be repetitious or irrelevant, or upon a showing
by the defendant that the original qui tam plaintiff's unrestricted participation during the course
of the litigation would be for purposes of harassment or would cause the defendant undue
- 30 -
burden, the court may, in its discretion, impose limitations on the original plaintiff's participation
in the case, such as (A) limiting the number of witnesses the person may call; (B) limiting the
length of the testimony of such witnesses; (C) limiting the person's cross-examination of
witnesses; or (D) otherwise limiting the participation by the person in the litigation.
(c)
Notwithstanding any other provision of law, whether or not the attorney general
or a local government elects to supersede or intervene in a qui tam civil action, the attorney
general and such local government may elect to pursue any remedy available with respect to the
criminal or civil prosecution of the presentation of false claims, including any administrative
proceeding to determine a civil money penalty or to refer the matter to the office of the medicaid
inspector general for medicaid related matters. If any such alternate civil remedy is pursued in
another proceeding, the person initiating the action shall have the same rights in such proceeding
as such person would have had if the action had continued under this section.
(d)
Notwithstanding any other provision of law, whether or not the attorney general
elects to supersede or intervene in a qui tam civil action, or to permit a local government to
supersede or intervene in the qui tam civil action, upon a showing by the state or local
government that certain actions of discovery by the person initiating the action would interfere
with the state's or a local government's investigation or prosecution of a criminal or civil matter
arising out of the same facts, the court may stay such discovery for a period of not more than
sixty days. Such a showing shall be conducted in camera. The court may extend the period of
such stay upon a further showing in camera that the state or a local government has pursued the
criminal or civil investigation or proceedings with reasonable diligence and any proposed
discovery in the civil action will interfere with the ongoing criminal or civil investigation or
proceedings.
6.
Awards to qui tam plaintiff.
(a)
If the attorney general elects to convert the qui tam civil action into an attorney
general enforcement action, or to permit a local government to convert the action into a civil
enforcement action by such local government, or if the attorney general or a local government
elects to intervene in the qui tam civil action, then the person or persons who initiated the qui
tam civil action collectively shall be entitled to receive between fifteen and twenty-five percent
of the proceeds recovered in the action or in settlement of the action. The court shall determine
the percentage of the proceeds to which a person commencing a qui tam civil action is entitled,
by considering the extent to which the plaintiff substantially contributed to the prosecution of the
action. Where the court finds that the action was based primarily on disclosures of specific
information (other than information provided by the person bringing the action) relating to
allegations or transactions in a criminal, civil or administrative hearing, in a legislative or
administrative report, hearing, audit or investigation, or from the news media, the court may
award such sums as it considers appropriate, but in no case more than ten percent of the
proceeds, taking into account the significance of the information and the role of the person or
persons bringing the action in advancing the case to litigation.
(b)
If the attorney general or a local government does not elect to intervene or convert
the action, and the action is successful, then the person or persons who initiated the qui tam
action which obtains proceeds shall be entitled to receive between twenty-five and thirty percent
- 31 -
of the proceeds recovered in the action or settlement of the action. The court shall determine the
percentage of the proceeds to which a person commencing a qui tam civil action is entitled, by
considering the extent to which the plaintiff substantially contributed to the prosecution of the
action.
(c)
With the exception of a court award of costs, expenses or attorneys' fees, any
payment to a person pursuant to this paragraph shall be made from the proceeds.
7.
Costs, expenses, disbursements and attorneys' fees.
In any action brought pursuant to this article, the court may award the attorney general, on behalf
of the people of the state of New York, and any local government that participates as a party in
the action, and any person who is a qui tam plaintiff, an amount for reasonable expenses which
the court finds to have been necessarily incurred, plus reasonable attorneys' fees, plus costs
pursuant to article eighty-one of the civil practice law and rules. All such expenses, fees and
costs shall be awarded directly against the defendant and shall not be charged from the proceeds,
but shall only be awarded if the state or a local government or the qui tam civil action plaintiff
prevails in the action.
8.
Exclusion from recovery.
If the court finds that the qui tam civil action was brought by a person who planned or initiated
the violation of section one hundred eighty-nine of this article upon which the action was
brought, then the court may, to the extent the court considers appropriate, reduce the share of the
proceeds of the action which the person would otherwise be entitled to receive under subdivision
six of this section, taking into account the role of such person in advancing the case to litigation
and any relevant circumstances pertaining to the violation. If the person bringing the qui tam
civil action is convicted of criminal conduct arising from his or her role in the violation of
section one hundred eighty-nine of this article, that person shall be dismissed from the qui tam
civil action and shall not receive any share of the proceeds of the action. Such dismissal shall not
prejudice the right of the attorney general to supersede or intervene in such action and to civilly
prosecute the same on behalf of the state or a local government.
9.
Certain actions barred.
(a)
The court shall dismiss a qui tam action under this article if:
(i)
it is based on allegations or transactions which are the subject of a pending
civil action or an administrative action in which the state or a local government is already
a party;
(ii)
the state or local government has reached a binding settlement or other
agreement with the person who violated section one hundred eighty-nine of this article
resolving the matter and such agreement has been approved in writing by the attorney
general, or by the applicable local government attorney; or (iii) against a member of the
legislature, a member of the judiciary, or a senior executive branch official if the action is
based on evidence or information known to the state when the action was brought.
- 32 -
(b)
The court shall dismiss a qui tam action under this article, unless opposed by the
state or an applicable local government, or unless the qui tam plaintiff is an original source of the
information, if substantially the same allegations or transactions as alleged in the action were
publicly disclosed:
(i)
in a state or local government criminal, civil, or administrative hearing in
which the state or a local government or its agent is a party;
(ii)
in a federal, New York state or New York local government report,
hearing, audit, or investigation that is made on the public record or disseminated broadly
to the general public; provided that such information shall not be deemed "publicly
disclosed" in a report or investigation because it was disclosed or provided pursuant to
article six of the public officers law, or under any other federal, state or local law, rule or
program enabling the public to request, receive or view documents or information in the
possession of public officials or public agencies;
(iii)
iin the news media, provided that such allegations or transactions are not
"publicly disclosed" in the "news media" merely because information of allegations or
transactions have been posted on the internet or on a computer network.
10.
Liability.
Neither the state nor any local government shall be liable for any expenses which any person
incurs in bringing a qui tam civil action under this article.
§ 191. REMEDIES
1.
Any current or former employee, contractor, or agent of any private or public employer
who is discharged, demoted, suspended, threatened, harassed or in any other manner
discriminated against in the terms and conditions of employment, or otherwise harmed or
penalized by an employer, or a prospective employer, because of lawful acts done by the
employee, contractor, agent, or associated others in furtherance of an action brought under this
article or other efforts to stop one or more violations of this article, shall be entitled to all relief
necessary to make the employee, contractor or agent whole. Such relief shall include but not be
limited to:
(a)
an injunction to restrain continued discrimination;
(b)
hiring, contracting or reinstatement to the position such person would have had
but for the discrimination or to an equivalent position;
(c)
reinstatement of full fringe benefits and seniority rights;
(d)
payment of two times back pay, plus interest; and
(e)
compensation for any special damages sustained as a result of the discrimination,
including litigation costs and reasonable attorneys' fees.
- 33 -
2.
For purposes of this section, a "lawful act" shall include, but not be limited to, obtaining
or transmitting to the state, a local government, a qui tam plaintiff, or private counsel solely
employed to investigate, potentially file, or file a cause of action under this article, documents,
data, correspondence, electronic mail, or any other information, even though such act may
violate a contract, employment term, or duty owed to the employer or contractor, so long as the
possession and transmission of such documents are for the sole purpose of furthering efforts to
stop one or more violations of this article. Nothing in this subdivision shall be interpreted to
prevent any law enforcement authority from bringing a civil or criminal action against any
person for violating any provision of law.
3.
An employee, contractor or agent described in subdivision one of this section may bring
an action in the appropriate supreme court for the relief provided in this section.
§ 192. LIMITATION OF ACTIONS, BURDEN OF PROOF
(1)
A civil action under this article shall be commenced no later than ten years after the date
on which the violation of this article is committed. Notwithstanding any other provision of law,
for the purposes of this article, an action under this article is commenced by the filing of the
complaint.
(1-a) For purposes of applying rule three thousand sixteen of the civil practice law and rules, in
pleading an action brought under this article the qui tam plaintiff shall not be required to identify
specific claims that result from an alleged course of misconduct, or any specific records or
statements used, if the facts alleged in the complaint, if ultimately proven true, would provide a
reasonable indication that one or more violations of section one hundred eighty-nine of this
article are likely to have occurred, and if the allegations in the pleading provide adequate notice
of the specific nature of the alleged misconduct to permit the state or a local government
effectively to investigate and defendants fairly to defend the allegations made.
(2)
In any action brought under this article, the state, a local government that participates as a
party in the action, or the person bringing the qui tam civil action, shall be required to prove all
essential elements of the cause of action, including damages, by a preponderance of the
evidence.
§ 193. OTHER LAW ENFORCEMENT AUTHORITY AND DUTIES
This article shall not:
1.
preempt the authority, or relieve the duty, of other law enforcement agencies to
investigate and prosecute suspected violations of law;
2.
prevent or prohibit a person from voluntarily disclosing any information concerning a
violation of this article to any law enforcement agency; or
3.
limit any of the powers granted elsewhere in this chapter and other laws to the attorney
general or state agencies or local governments to investigate possible violations of this article
and take appropriate action against wrongdoers.
- 34 -
§ 194. REGULATIONS
The attorney general is authorized to adopt such rules and regulations as is necessary to
effectuate the purposes of this article.
- 35 -
A
B
FCA?
C
Type
D
Knowledge
Req'd
J
K
Intent
Req'd
E
Penalty
F
Adj. Damages
for
Inflation
G
H
Cost of
Action
incl. in
penalty
I
Qui
tam
provision
Qui tam %
of proceeds
if state
intervenes
Qui tam
% of
proceeds
w/o state
L
No
$5,500 to
$11,000
Yes
Yes
Yes
15-25%
25-30%
1
Yes
FED 31 USC 3729 Gen.
2
3 AK No
4 AL No but proposed bill Feb 2013
AR ACA 20-77- Med. Yes
901
N/A
$5,000 to
$10,000
5
6 AZ No but proposed legislation: House Bill 2844
Gen.
Yes
No
$5,500 to
CA Cal. Gov't
$11,000
Code §
12651
7
No
$5,000 to
CO CRSA § 25.5- Med. Yes
4-305
$10,000
8
No
$5,500 to
CT CGSA § 17b- Med. Yes
9
301b
$11,000
Yes
No
$5,000 to
DC DC ST § 2- Gen.
10
381.02
$10,000
Gen.
Yes
No
$5,500 to
DE 6 Del.C. §
1201
$11,000
11
Gen.
Yes
No
$5,500 to
FL FSA §
12
68.082
$11,000
No
$5,500 to
GA1 Ga. Code § Med. Yes
13
49-4-168.1
$11,000
Yes
No
$5,500 to
GA2 Ga. Code. § Gen.
14
23-3-121
$11,000
Yes
No
$5,500 to
HI HRS 661-21 Gen.
$11,000
15
Yes
No
Same as
IA ICA § 685.1 Gen.
16
fed. FCA
17 ID NO
Gen.
Yes
No
$5,500 to
IL 740 ILCS
18
175/3
$11,000
Yes or
Yes or Minimum
IN IC 5-11-5.5-2 Gen.
intent
know- $5,000
19
ledge
3x
M
Reasonable
Expenses
+ Atty
Fees for
Relator?
Yes
N
Same
Retaliation
Protection?
O
Same
Stat. of
Limitations
P
Q
Same
Breadth
of
Conduct
Approved
by OIG
under new
regs?
No
Restitution + Yes
3x damages
No
No but info providers can receive up t N/A
No
No
N/A
N/A
N/A
No
3x
Yes
Yes
15-33%
25-50%
Yes
Yes
Yes
Yes
N/A
No
No
3x
Yes
Yes
15-25%
25-30%
Yes
No
Yes
No
No
Yes
3x
Yes
Yes
15-25%
25-30%
Yes
Yes
Yes
Yes
Yes
No
3x
Yes
Yes
10-25%
25-40%
Yes
Yes
Yes
No
N/A*
No
3x
Yes
Yes
15-25%
25-30%
Yes
No
Yes
No
No
No
Treble
Yes
Yes
15-25%
25-30%
Yes
No
Yes
No
No*
No
3x
Yes
Yes
15-25%
25-30%
Yes
No
No
Yes
No
No
3x
Yes
Yes
15-25%
25-30%
Yes
No
Yes
No
N/A
No
3x
Yes
Yes
15-25%
25-30%
Yes
Yes
No
Yes
N/A*
Yes
3x
Yes
Yes
15-25%
25-30%
Yes
Yes
Yes
Yes
Yes
No
3x
Yes
Yes
15-25%
25-30%
Yes
Yes
Yes
Yes
N/A
No*
No
3x
Yes
Yes
15-25%
25-30%
Yes
No
No
No
No
A
B
C
D
Gen.
Yes
KS KSA 7520
7503
21 KY NO: proposed 2012 legislation
Med. Yes
LA LSA-R.S.
46:438.3
E
F
G
$1,000 to
$11,000
No
3x
N/A
$5,500 to
11,000
Yes
I
Yes
MA MGLA 12 § Gen.
5B
Yes
No
$5,500 to
$11,000
Yes
Yes
Greater of
fine up to
$10,000 or
3x illegal
remuneratio
n
3x
Yes
Med.
MD Md. Code
Health-Gen §
2-602
Yes
No
up to
$10,000
No
up to 3x
Dept
ME Me. Rev.
Stat. tit. 22, § HHS
15
Yes
N/A
Restitution No
MI MCLA
400.603
Med.
Yes
No
MN M.S.A.
15C.02
Gen.
Yes
No
Up to
No
$50,000 or
up to 4
years in
prison or
both
$5,500 to No
$11,000
Med.
MO Mo. Rev.
Stat. 191.900
Yes
Yes
22
23
H
N/A
Yes
J
K
L
M
N
O
P
Q
No
N/A
N/A
N/A
N/A
No
No
N/A
Yes
15-25%
25-30%
Yes
Yes
Yes
No
N/A
No
Yes
15-25%
25-30%
Yes
Yes
Yes
Yes
No*
Yes
15-25%
N/A
Yes
No
Yes
Yes
N/A
24
Greater of: Yes
3x excess
benefits/pmt
s, min of
$2000 per
false claim
or for each
false doc
submitted
No
No
No
N/A
N/A
N/A
N/A
N/A
N/A
N/A*
Yes
15-25%
25-30%
Yes
No
No
No
No*
3x
Yes
Yes
No
No
No
No*
Resitution No
+ $5,000
to $10,000
3x
Yes
No
25-30%
Yes
15-25% if
intervenes at
outset, 1530% if
intervenes
after outset
No but original source gets 10%
No
N/A
No
N/A
$5,000 to
$10,000
3x
Yes
Yes
15-25%
No
No
No
N/A
No*
25
26
27
28
29 MS No - but has medicaid fraud control act
Yes
No
MT MCA 17-8- Gen.
30
403
No
25-30%
Yes
A
B
C
J
K
Yes
No
$5,500 to
$11,000
No
3x
Yes
Yes
15-25%
25-30%
Yes
No
Yes
Yes
No*
Yes
N/A
No
3x
Yes
No
N/A
N/A
N/A
N/A
No
No
N/A
N/A*
Yes
No
up to
$10,000
$5,000 to
$10,000
No
3x
Yes
Yes
15-25%
25-30%*
Yes
No
No
No
No
Gen.
Yes
No
Same as
fed FCA
Yes
3x
Yes
Yes
15-25%
25-30%
Yes
No
No
No
No
Gen.
Yes
No
No
3x
Yes
Yes
15-25%
25-30%
Yes
Yes
No
No
No*
Med.
Yes
N/A
$5,000 to
$10,000
N/A
N/A
3x
No
Yes
15-25%
25-30%
Yes
No
No
No
N/A*
Gen.
Yes
No
No
3x
Yes
Yes
15-33%
25-50%
Yes
No
No
No
No
Gen.
Yes
No
No
3x
Yes
Yes
15-25%
25-30%
Yes
No
No
No
No*
Yes
3x
Yes
Yes
15-25%
25-30%
Yes
No
No
No
N/A
No*
NC NCGSA § 1- Gen.
607
31
32 ND
NE
33
NH
No
Neb.Rev.St. § Med.
68-936
NH Rev Stat Med.
§ 167:61-a
D
E
F
G
H
I
L
M
N
O
P
Q
34
NJ
NJSA
2A:32C-3
35
NM1 NM ST § 449-3
NM2 NMSA § 2737
14-4
NV N.R.S.
38
357.040
NY NY State Fin.
Law § 188
36
39
40 OH No: bill proposed in 2011
OK Okla. Stat. tit. Med. Yes
63, § 5053.1
$5,000 to
$10,000
$6,000 to
$12,000
No
$5,000 to
$10,000
No
Greater of No
$10,000 or
2x amt of
damages
incurred
All damages Yes
arising from
violation
No
N/A
N/A
N/A
N/A
No
No
N/A
No
$5,000 to
$10,000
3x
Yes
15-25%
25-30%
Yes
No
No
No
N/A
No*
41
OR O.R.S
180.755
Gen.
Yes
42
43 PA No: bill proposed in 2009
Gen.
Yes
RI R.I. Gen.
Laws § 9-1.13
44
45 SC No: bill proposed in 2009
46 SD No
Yes
TN1 T.C.A. § 4-18-Gen.
47
103
TN2 T.C.A. § 71-5-Med. Yes
48
182
No
No
$2,500 to
$10,000
$5,000 to
$25,000
No
Yes
No
3x
Yes
Yes
25-33%
35-50%
Yes
No
No
No
N/A
N/A
N/A
Yes
3x
Yes
Yes
15-25%
25-30%
Yes
Yes
Yes
Yes
No*
A
B
J
K
Med.
Yes
No
$5,500 to No
$15,000 or
FCA
min/max if
injury to
elderly,
disabled,
or person
under 18
OR
$5,500 to
$11,000 or
FCA
min/max
Payment of No
benefit + 2x
damages +
injunctive
relief
Yes
15-25%
UT U.C.A. § 26- Med.
20-3
Yes
No
$5,000 to
$10,000
No
Restitution + Yes
3x damages
Gen.
Yes
No
$5,500 to
$11,000
No
3x
Med.
Yes
No
Yes
Med.
Yes
No
$5,500 to
$11,000
$5,000 to
$10,000
No
TX Tex. Hum.
Res. Code §
36.002
C
D
E
49
F
G
H
I
L
25-30%
M
Yes
N
No
O
P
Q
No
No
No
No - but can make civil investigation demandN/A
Yes
No
N/A
Yes
Yes
15-25%
25-30%
Yes
Yes
Yes
Yes
No
3x
Yes
Yes
15-25%
25-30%
Yes
Yes
Yes
Yes
N/A
Yes
3x
If avail
under
comm.
law
Yes
Yes
15-25%
25-30%
Yes
No
No
No
No
No
N/A
N/A
N/A
N/A
N/A
No
N/A
50
VA
51
52 VT
WA
53
WI
VA Code §
8.01-216.3
No
RCWA §
74.66.020
W.S.A.
20.931
54
Up to
$10,000
fine or
prison up
to 10 yrs
55
or both
56 WY No: 2013 med. Bill proposed W.S. 42-4-301
WV W. Va. Code, Med.
§ 9-7-4
Yes
Yes for
conceal
ing
facts
3x
N/A
Statute For:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Medicaid
Arkansas
Colorado
Connecticut
Louisiana
maryland
Maine
Michigan
Missouri
Nebraska
New Hampshire
Oklahoma
Texas
Utah
Washington
Wisconsin
West Virginia
General
California
District of Columbia
Delaware
Florida
Hawaii
Iowa
Illinois
Indiana
Kansas
Massachusetts
Minnesota
Montana
North Carolina
New Jersey
Nevada
New York
Oregon
Rhode Island
Virginia
Both (2)
Georgia
New Mexico
Tennessee
None
Alaska
Alabama
Arizona
Idaho
Kentucky
Mississippi
North Dakota
Ohio
Pennsylvania
South Carolina
South Dakota
Vermont
Wyoming
OMB No. 1545-0409
Department of the Treasury - Internal Revenue Service
Form 211
Date Claim Received:
Application for Award for
Original Information
(Rev. December 2007)
Claim No. (completed by IRS)
1. Name of individual claimant
2. Claimant's Date of Birth 3. Claimant's SSN or ITIN
4. Name of spouse (if applicable)
5. Spouse's Date of Birth
Month
Month
Day
Day
Year
Year
6. Spouse's SSN or ITIN
7. Address of claimant, including zip code, and telephone number
8. Name & Title of IRS employee to whom violation was reported
9. Date violation reported:
10. Name of taxpayer (include aliases) and any related taxpayers who committed the violation:
11. Taxpayer Identification Number(s) (e.g.,
SSN, ITIN, or EIN):
12. Taxpayer's address, including zip code:
13. Taxpayer's date of birth or approximate
age:
14. State the facts pertinent to the alleged violation. (Attach a detailed explanation and all supporting information in your possession
and describe the availability and location of any additional supporting information not in your possession.) Explain why you believe the
act described constitutes a violation of the tax laws.
15. Describe how you learned about and/or obtained the information that supports this claim and describe your present or former
relationship to the alleged noncompliant taxpayer(s). (Attach sheet if needed.)
16. Describe the amount owed by the taxpayer(s). Please provide a summary of the information you have that supports your claim as
to the amount owed. (Attach sheet if needed.)
Declaration under Penalty of Perjury
I declare under penalty of perjury that I have examined this application, my accompanying statement, and supporting documentation
and aver that such application is true, correct, and complete, to the best of my knowledge.
18. Date
17. Signature of Claimant
MAIL THE COMPLETED FORM TO THE ADDRESS SHOWN ON THE BACK
Form 211 (Rev. 12-2007)
Catalog Number 16571S
publish.no.irs.gov
Department of the Treasury-Internal Revenue Service
General Information:
On December 20, 2006, Congress made provision for the establishment of a Whistleblower Office within the IRS. This office has
responsibility for the administration of the informant award program under section 7623 of the Internal Revenue Code. Section 7623
authorizes the payment of awards from the proceeds of amounts the Government collects by reason of the information provided by
the claimant. Payment of awards under 7623(a) is made at the discretion of the IRS. To be eligible for an award under Section
7623(b), the amount in dispute (including tax, penalties, interest, additions to tax, and additional amounts) must exceed
$2,000,000.00; if the taxpayer is an individual, the individual's gross income must exceed $200,000.00 for any taxable year at issue.
Send completed form along with any supporting information to:
Internal Revenue Service
Whistleblower Office
SE: WO
1111 Constitution Ave., NW
Washington, DC 20224
Instructions for Completion of Form 211:
Questions 1 - 7
Information regarding Claimant (informant): Name, Date of Birth, Social Security Number (SSN) or Individual Taxpayer Identification
Number (ITIN), address including zip code, and telephone number (telephone number is optional).
Questions 8 - 9
If you reported the violation to an IRS employee, provide the employee's name and title and the date the violation was reported.
Questions 10 - 13
Information about Taxpayer - Provide specific and credible information regarding the taxpayer or entities that you believe have failed
to comply with tax laws and that will lead to the collection of unpaid taxes.
Question 14
Attach all supporting documentation (for example, books and records) to substantiate the claim. If documents or supporting
evidence are not in your possession, describe these documents and their location.
Question 15
Describe how the information which forms the basis of the claim came to your attention, including the date(s) on which this
information was acquired, and a complete description of your relationship to the taxpayer.
Question 16
Describe the facts supporting the amount you claim is owed by the taxpayer.
Question 17
Information provided in connection with a claim submitted under this provision of law must be made under an original signed
Declaration under Penalty of Perjury. Joint claims must be signed by each claimant.
PRIVACY ACT AND PAPERWORK REDUCTION ACT NOTICE: We ask for the information on this form to carry out the
internal revenue laws of the United States. Our authority to ask for this information is 26 USC 6109 and 7623. We collect this
information for use in determining the correct amount of any award payable to you under 26 USC 7623. We may disclose this
information as authorized by 26 USC 6103, including to the subject taxpayer(s) as needed in a tax compliance investigation and
to the Department of Justice for civil and criminal litigation. You are not required to apply for an award. However, if you apply for
an award you must provide as much of the requested information as possible. Failure to provide information may delay or
prevent processing your request for an award; providing false information may subject you to penalties.
You are not required to provide the information requested on a form that is subject to the Paperwork Reduction Act unless the
form displays a valid OMB control number. Books or records relating to a form or its instructions must be retained as long as
their contents may become material in the administration of any internal revenue law. Generally, tax returns and return
information are confidential, as required by 26 U.S.C. 6103.
The time needed to complete this form will vary depending on individual circumstances. The estimated average time is 35
minutes. If you have comments concerning the accuracy of these time estimates or suggestions for making this form simpler, we
would be happy to hear from you. You can email us at *[email protected] (please type "Forms Comment" on the subject line) or
write to the Internal Revenue Service, Tax Forms Coordinating Committee, SE: W: CAR: MP: T: T: SP, 1111 Constitution Ave.
NW, IR-6406, Washington, DC 20224.
Send the completed Form 211 to the above Washington address of the Whistleblower Office. Do NOT send the Form 211 to the Tax Forms
Coordinating Committee.
Form 211 (Rev. 12-2007)
Catalog Number 16571S
publish.no.irs.gov
Department of the Treasury-Internal Revenue Service
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM TCR
TIP, COMPLAINT OR REFERRAL
A.
INFORMATION ABOUT YOU
COMPLAINANT 1:
1. Last Name
M.I.
First
Apartment/
Unit #
2. Street Address
City
State/
Province
3. Telephone
Alt. Phone
4. Occupation
ZIP/
Postal Code
Country
E-mail Address
Preferred
method of
communication
COMPLAINANT 2:
1. Last Name
First
Apartment/
Unit #
2. Street Address
City
State/
Province
3. Telephone
Alt. Phone
4. Occupation
B.
M.I.
ZIP/
Postal Code
Country
E-mail Address
Preferred
method of
communication
ATTORNEY’S INFORMATION (If Applicable - See Instructions)
1. Attorney’s Name
2. Firm Name
3. Street Address
City
State/
Province
ZIP/
Postal Code
4. Telephone
Fax
E-mail Address
Country
C.
TELL US ABOUT THE INDIVIDUAL OR ENTITY YOU HAVE A COMPLAINT AGAINST
If an individual, specify profession:
INDIVIDUAL/ENTITY 1:
1. Type:
Individual
If an entity, specify type:
Entity
2. Name
Apartment/
Unit #
3. Street Address
City
State/
Province
4. Phone
E-mail Address
INDIVIDUAL/ENTITY 2:
If an individual, specify profession:
1. Type:
Individual
ZIP/
Postal Code
Country
Internet Address
If an entity, specify type:
Entity
2. Name
Apartment/
Unit #
3. Street Address
State/
Province
City
4. Phone
D.
ZIP/
Postal Code
E-mail Address
Country
Internet Address
TELL US ABOUT YOUR COMPLAINT
1. Occurrence Date (mm/dd/yyyy):
/
/
2. Nature of complaint:
3a. Has the complainant or counsel had any prior communication(s) with the SEC concerning this matter?
YES
NO
3b. If the answer to 3a is “Yes,” name of SEC staff member with whom the complainant or counsel communicated
4a. Has the complainant or counsel provided the information to any other agency or organization, or has any other agency or organization requested
the information or related information from you?
YES
NO
4b. If the answer to 4a is “Yes,” please provide details. Use additional sheets if necessary.
4c. Name and contact information for point of contact at agency or organization, if known
5a. Does this complaint relate to an entity of which the complainant is or was an officer, director, counsel, employee, consultant or contractor?
YES
NO
5b. If the answer to question 5a is “Yes,” has the complainant reported this violation to his or her supervisor, compliance office, whistleblower hotline,
ombudsman, or any other available mechanism at the entity for reporting violations?
YES
NO
5c. If the answer to question 5b is “Yes,” please provide details. Use additional sheets if necessary.
5d. Date on which the complainant took the action(s) described in question 5b (mm/dd/yyyy):
6a. Has the complainant taken any other action regarding your complaint?
/
/
YES
NO
YES
NO
6b. If the answer to question 6a is “Yes,” please provide details. Use additional sheets if necessary.
7a. Does your complaint relate to a residential mortgage-backed security?
7b. Type of security or investment, if relevant
7c. Name of issuer or security, if relevant
7d. Security/Ticker Symbol or CUSIP no.
8. State in detail all facts pertinent to the alleged violation. Explain why the complainant believes the acts described constitute a violation of the federal
securities laws. Use additional sheets if necessary.
9. Describe all supporting materials in the complainant’s possession and the availability and location of any additional supporting materials not in
complainant’s possession. Use additional sheets, if necessary.
10. Describe how and from whom the complainant obtained the information that supports this claim. If any information was obtained from an attorney
or in a communication where an attorney was present, identify such information with as much particularity as possible. In addition, if any information
was obtained from a public source, identify the source with as much particularity as possible. Attach additional sheets if necessary.
11. Identify with particularity any documents or other information in your submission that you believe could reasonably be expected to reveal your
identity and explain the basis for your belief that your identity would be revealed if the documents were disclosed to a third party.
12. Provide any additional information you think may be relevant.
E.
ELIGIBILITY REQUIREMENTS AND OTHER INFORMATION
1. Are you, or were you at the time you acquired the original information you are submitting to us, a member, officer or employee of the Department of
Justice, the Securities and Exchange Commission, the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the
Federal Deposit Insurance Corporation, the Office of Thrift Supervision; the Public Company Accounting Oversight Board; any law enforcement
organization; or any national securities exchange, registered securities association, registered clearing agency, or the Municipal Securities
Rulemaking Board?
NO
YES
2. Are you, or were you at the time you acquired the original information you are submitting to us, a member, officer or employee of a foreign
government, any political subdivision, department, agency, or instrumentality of a foreign government, or any other foreign financial regulatory authority
as that term is defined in Section 3(a)(52) of the Securities Exchange Act of 1934 (15 U.S.C. §78c(a)(52))?
NO
YES
3. Did you acquire the information being provided to us through the performance of an engagement required under the federal securities laws by an
independent public accountant?
YES
NO
4. Are you providing this information pursuant to a cooperation agreement with the SEC or another agency or organization?
YES
NO
5. Are you a spouse, parent, child, or sibling of a member or employee of the SEC, or do you reside in the same household as a member or employee
of the SEC?
YES
NO
6. Did you acquire the information being provided to us from any person described in questions 1 through 5?
YES
NO
7. Have you or anyone representing you received any request, inquiry or demand that relates to the subject matter of your submission (i) from the SEC,
(ii) in connection with an investigation, inspection or examination by the Public Company Accounting Oversight Board, or any self-regulatory
organization; or (iii) in connection with an investigation by the Congress, any other authority of the federal government, or a state Attorney General or
securities regulatory authority?
NO
YES
8. Are you currently a subject or target of a criminal investigation, or have you been convicted of a criminal violation, in connection with the information
you are submitting to the SEC?
YES
NO
9. If you answered “yes” to any of the questions 1 through 8, use this space to provide additional details relating to your responses. Use additional
sheets if necessary.
F. WHISTLEBLOWER’S DECLARATION
I declare under penalty of perjury under the laws of the United States that the information contained herein is true, correct and complete to the best of
my knowledge, information and belief. I fully understand that I may be subject to prosecution and ineligible for a whistleblower award if, in my
submission of information, my other dealings with the SEC, or my dealings with another authority in connection with a related action, I knowingly and
willfully make any false, fictitious, or fraudulent statements or representations, or use any false writing or document knowing that the writing or
document contains any false, fictitious, or fraudulent statement or entry.
Print name
Signature
Date
G. COUNSEL CERTIFICATION (If Applicable—See Instructions)
I certify that I have reviewed this form for completeness and accuracy and that the information contained herein is true, correct and complete to the
best of my knowledge, information and belief. I further certify that I have verified the identity of the whistleblower on whose behalf this form is being
submitted by viewing the whistleblower’s valid, unexpired government issued identification (e.g., driver’s license, passport) and will retain an original,
signed copy of this form, with Section F signed by the whistleblower, in my records. I further certify that I have obtained the whistleblower’s nonwaiveable consent to provide the Commission with his or her original signed Form TCR upon request in the event that the Commission requests it due
to concerns that the whistleblower may have knowingly and willfully made false, fictitious, or fraudulent statements or representations, or used any false
writing or document knowing that the writing or document contains any false fictitious or fraudulent statement or entry; and that I consent to be legally
obligated to do so within 7 calendar days of receiving such a request from the Commission.
Signature
Date
Privacy Act Statement
This notice is given under the Privacy Act of 1974. This form may be used by anyone wishing to provide
the SEC with information concerning a possible violation of the federal securities laws. We are authorized
to request information from you by various laws: Sections 19 and 20 of the Securities Act of 1933,
Sections 21 and 21F of the Securities Exchange Act of 1934, Section 321 of the Trust Indenture Act of
1939, Section 42 of the Investment Company Act of 1940, Section 209 of the Investment Advisers Act of
1940 and Title 17 of the Code of Federal Regulations, Section 202.5.
Our principal purpose in requesting information is to gather facts in order to determine whether any
person has violated, is violating, or is about to violate any provision of the federal securities laws or rules
for which we have enforcement authority. Facts developed may, however, constitute violations of other
laws or rules. Further, if you are submitting information for the SEC’s whistleblower award program
pursuant to Section 21F of the Securities Exchange Act of 1934 (Exchange Act), the information provided
will be used in connection with our evaluation of your or your client’s eligibility and other factors relevant
to our determination of whether to pay an award to you or your client.
The information provided may be used by SEC personnel for purposes of investigating possible violations
of, or to conduct investigations authorized by, the federal securities law; in proceedings in which the
federal securities laws are in issue or the SEC is a party; to coordinate law enforcement activities
between the SEC and other federal, state, local or foreign law enforcement agencies, securities self
regulatory organizations, and foreign securities authorities; and pursuant to other routine uses as
described in SEC-42 “Enforcement Files.”
Furnishing the information requested herein is voluntary. However, a decision not provide any of the
requested information, or failure to provide complete information, may affect our evaluation of your
submission. Further, if you are submitting this information for the SEC whistleblower program and you do
not execute the Whistleblower Declaration or, if you are submitting information anonymously, identify the
attorney representing you in this matter, you may not be considered for an award.
Questions concerning this form maybe directed to the SEC Office of the Whistleblower, 100 F Street, NE,
Washington, DC 20549, Tel. (202) 551-4790, Fax (703) 813-9322.
Submission Procedures

After manually completing this Form TCR, please send it by mail or delivery to the SEC Office of
the Whistleblower, 100 F Street, NE, Washington, DC 20549, or by facsimile to (703) 813-9322.

You have the right to submit information anonymously. If you are submitting anonymously and
you want to be considered for a whistleblower award, however, you must (1) be represented by
an attorney in this matter and (2) complete Sections B and G of this form. If you are not
submitting anonymously, you may, but are not required to, have an attorney. If you are not
represented by an attorney in this matter, you may leave Sections B and G blank.

If you are submitting information for the SEC’s whistleblower award program, you must
submit your information either using this Form TCR or electronically through the SEC’s
Tips, Complaints and Referrals Portal, available on the SEC web site at
https://denebleo.sec.gov/TCRExternal/index.xhtml.
Instructions for Completing Form TCR:
Section A: Information about You
Questions 1-4: Please provide the following information about yourself:

Last name, first name, and middle initial

Complete address, including city, state and zip code

Telephone number and, if available, an alternate number where you can be reached

Your e-mail address (to facilitate communications, we strongly encourage you to provide your
email address),

Your preferred method of communication; and

Your occupation
For more than two complainants, use additional sheets as necessary to provide the required information
for each complainant.
Section B: Information about Your Attorney. Complete this section only if you are represented by
an attorney in this matter. You must be represented by an attorney, and this section must be
completed, if you are submitting your information anonymously and you want to be considered
for the SEC’s whistleblower award program.
Questions 1-4: Provide the following information about the attorney representing you in this matter:

Attorney’s name

Firm name

Complete address, including city, state and zip code

Telephone number and fax number, and

E-mail address
Section C: Tell Us about the Individual and/or Entity You Have a Complaint Against. If your
complaint relates to more than two individuals and/or entities, you may attach additional sheets.
Question 1:
Choose one of the following that best describes the individual or entity to which your
complaint relates:

For Individuals: accountant, analyst, attorney, auditor, broker, compliance officer,
employee, executive officer or director, financial planner, fund manager, investment
advisor representative, stock promoter, trustee, unknown, or other (specify).

For Entity: bank, broker-dealer, clearing agency, day trading firm, exchange, Financial
Industry Regulatory Authority, insurance company, investment advisor, investment advisor
representative, investment company, Individual Retirement Account or 401(k)
custodian/administrator, market maker, municipal securities dealers, mutual fund,
newsletter company/investment publication company, on-line trading firm, private fund
company (including hedge fund, private equity fund, venture capital fund, or real estate
fund), private/closely held company, publicly held company, transfer agent/paying
agent/registrar, underwriter, unknown, or other (specify).
Questions 2-4: For each subject, provide the following information, if known:

Full name

Complete address, including city, state and zip code

Telephone number,

E-mail address, and

Internet address, if applicable
Section D: Tell Us about Your Complaint
Question 1:
State the date (mm/dd/yyyy) that the alleged conduct began.
Question 2:
Choose the option that you believe best describes the nature of your complaint. If you are
alleging more than one violation, please list all that you believe may apply. Use additional
sheets if necessary.

Theft/misappropriation (advance fee fraud; lost or stolen securities; hacking of account)

Misrepresentation/omission (false/misleading marketing/sales literature; inaccurate,
misleading or non-disclosure by Broker-Dealer, Investment Adviser and Associated
Person; false/material misstatements in firm research that were basis of transaction)

Offering fraud (Ponzi/pyramid scheme; other offering fraud)

Registration violations (unregistered securities offering)

Trading (after hours trading; algorithmic trading; front-running; insider trading,
manipulation of securities/prices; market timing; inaccurate quotes/pricing information;
program trading; short selling; trading suspensions; volatility)

Fees/mark-ups/commissions (excessive or unnecessary administrative fees; excessive
commissions or sales fees; failure to disclose fees; insufficient notice of change in fees;
negotiated fee problems; excessive mark-ups/markdowns; excessive or otherwise
improper spreads)

Corporate disclosure/reporting/other issuer matter (audit; corporate governance; conflicts
of interest by management; executive compensation; failure to notify shareholders of
corporate events; false/misleading financial statements, offering documents, press
releases, proxy materials; failure to file reports; financial fraud; Foreign Corrupt Practices
Act violations; going private transactions; mergers and acquisitions; restrictive legends,
including 144 issues; reverse stock splits; selective disclosure – Regulation FD, 17 CFR
243; shareholder proposals; stock options for employees; stock splits; tender offers)

Sales and advisory practices (background information on past violations/integrity; breach
of fiduciary duty/responsibility (IA); failure to disclose breakpoints; churning/excessive
trading; cold calling; conflict of interest; abuse of authority in discretionary trading; failure
to respond to investor; guarantee against loss/promise to buy back shares; high pressure
sales techniques; instructions by client not followed; investment objectives not followed;
margin; poor investment advice; Regulation E (Electronic Transfer Act); Regulation S-P,
17 CFR 248, (privacy issues); solicitation methods (non-cold calling; seminars); suitability;
unauthorized transactions)

Operational (bond call; bond default; difficulty buying/selling securities;
confirmations/statements; proxy materials/prospectus; delivery of funds/proceeds;
dividend and interest problems; exchanges/switches of mutual funds with fund family;
margin (illegal extension of margin credit, Regulation T restrictions, unauthorized margin
transactions); online issues (trading system operation); settlement (including T+1 or T=3
concerns); stock certificates; spam; tax reporting problems; titling securities (difficulty
titling ownership); trade execution.

Customer accounts (abandoned or inactive accounts; account administration and
processing; identity theft affecting account; IPOs: problems with IPO allocation or
eligibility; inaccurate valuation of Net Asset Value; transfer of account)

Comments/complaints about SEC, Self-Regulatory Organization, and Securities Investor
Protection Corporation processes & programs (arbitration: bias by arbitrators/forum, failure
to pay/comply with award, mandatory arbitration requirements, procedural problems or
delays; SEC: complaints about enforcement actions, complaints about rulemaking, failure
to act; Self-Regulatory Organization: failure to act; Investor Protection: inadequacy of laws
or rules; SIPC: customer protection, proceedings and Broker-Dealer liquidations;

Other (analyst complaints; market maker activities; employer/employee disputes; specify
other).
Question 3a:
State whether you or your counsel have had any prior communications with the SEC
concerning this matter.
Question 3b:
If the answer to question 3a is yes, provide the name of the SEC staff member with whom
you or your counsel communicated.
Question 4a:
Indicate whether you or your counsel have provided the information you are providing to
the SEC to any other agency or organization.
Question 4b:
If the answer to question 4a is yes, provide details.
Question 4c:
Provide the name and contact information of the point of contact at the other agency or
organization, if known.
Question 5a:
Indicate whether your complaint relates to an entity of which you are, or were in the past,
an officer, director, counsel, employee, consultant, or contractor.
Question 5b:
If the answer to question 5a is yes, state whether you have reported this violation to your
supervisor, compliance office, whistleblower hotline, ombudsman, or any other available
mechanism at the entity for reporting violations.
Question 5c:
If the answer to question 5b is yes, provide details.
Question 5d:
Provide the date on which you took the actions described in questions 5a and 5b..
Question 6a:
Indicate whether you have taken any other action regarding your complaint, including
whether you complained to the SEC, another regulator, a law enforcement agency, or
any other agency or organization; initiated legal action, mediation or arbitration, or
initiated any other action.
Question 6b:
If you answered yes to question 6a, provide details, including the date on which you took
the action(s) described, the name of the person or entity to whom you directed any report
or complaint and contact information for the person or entity, if known, and the complete
case name, case number, and forum of any legal action you have taken. Use additional
sheets if necessary.
Question 7a:
Check the appropriate box regarding whether your complaint relates to residential
mortgage-backed securities.
Question 7b:
List the following options that you believe best describes the type of security or
investment at issue, if applicable:

1031 exchanges

529 plans

American Depositary Receipts

Annuities (equity-indexed annuities, fixed annuities, variable annuities)

Asset-backed securities

Auction rate securities

Banking products (including credit cards)

Certificates of deposit (CDs)

Closed-end funds

Coins and precious metals (gold, silver, etc.)

Collateralized mortgage obligations (CMOs)

Commercial paper

Commodities (currency transactions, futures, stock index options)

Convertible securities

Debt (corporate, lower-rated or “junk”, municipal)

Equities (exchange-traded, foreign, Over-the-Counter, unregistered, linked notes)
Exchange Traded Funds

Franchises or business ventures

Hedge funds

Insurance contracts (not annuities)

Money-market funds

Mortgage-backed securities (mortgages, reverse mortgages)

Mutual funds

Options (commodity options, index options)

Partnerships

Preferred shares

Prime bank securities/high yield programs

Promissory notes

Real estate (real estate investment trusts (REITs))

Retirement plans ( 401(k), IRAs)

Rights and warrants

Structured note products

Subprime issues

Treasury securities

U.S. government agency securities

Unit investment trusts (UIT)

Viaticals and life settlements

Wrap accounts

Separately Managed Accounts (SMAs)

Unknown

Other (specify)
Question 7c:
Provide the name of the issuer or security, if applicable.
Question 7d:
Provide the ticker symbol or CUSIP number of the security, if applicable.
Question 8:
State in detail all the facts pertinent to the alleged violation. Explain why you believe the
facts described constitute a violation of the federal securities laws. Attach additional
sheets if necessary.
Question 9:
Describe all supporting materials in your possession and the availability and location of
additional supporting materials not in your possession. Attach additional sheets if
necessary.
Question 10:
Describe how you obtained the information that supports your allegation. If any
information was obtained from an attorney or in a communication where an attorney was
present, identify such information with as much particularity as possible. In addition, if any
information was obtained from a public source, identify the source with as much
particularity as possible. Attach additional sheets if necessary.
Question 11:
You may use this space to identify any documents or other information in your
submission that you believe could reasonably be expected to reveal your identity. Explain
the basis for your belief that your identity would be revealed if the documents or
information were disclosed to a third party.
Question 12:
Provide any additional information you think may be relevant.
Section E: Eligibility Requirements
Question 1:
State whether you are currently, or were at the time you acquired the original information
that you are submitting to the SEC, a member, officer, or employee of the Department of
Justice; the Securities and Exchange Commission; the Comptroller of the Currency, the
Board of Governors of the Federal Reserve System, the Federal Deposit Insurance
Corporation, the Office of Thrift Supervision; the Public Company Accounting Oversight
Board; any law enforcement organization; or any national securities exchange, registered
securities association, registered clearing agency, the Municipal Securities Rulemaking
Board
Question 2:
State whether you are, or were you at the time you acquired the original information you
are submitting to the SEC, a member, officer or employee of a foreign government, any
political subdivision, department, agency, or instrumentality of a foreign government, or
any other foreign financial regulatory authority as that term is defined in Section 3(a)(52)
of the Securities Exchange Act of 1934.

Section 3(a)(52) of the Exchange Act (15 U.S.C. §78c(a)(52)) currently
defines ‘‘foreign financial regulatory authority’’ as “any (A) foreign securities
authority, (B) other governmental body or foreign equivalent of a self-
regulatory organization empowered by a foreign government to administer
or enforce its laws relating to the regulation of fiduciaries, trusts,
commercial lending, insurance, trading in contracts of sale of a commodity
for future delivery, or other instruments traded on or subject to the rules of
a contract market, board of trade, or foreign equivalent, or other financial
activities, or (C) membership organization a function of which is to regulate
participation of its members in activities listed above.”
Question 3:
State whether you acquired the information you are providing to the SEC through the
performance of an engagement required under the securities laws by an independent
public accountant.
Question 4:
State whether you are providing the information pursuant to a cooperation agreement
with the SEC or with any other agency or organization.
Question 5:
State whether you are a spouse, parent, child or sibling of a member or employee of the
SEC, or whether you reside in the same household as a member or employee of the
SEC.
Question 6:
State whether you acquired the information you are providing to the SEC from any
individual described in Questions 1 through 5 of this Section.
Question 7:
State whether you or anyone representing you has received any request, inquiry or
demand that relates to the subject matter of your submission in connection with: (i) an
investigation, inspection or examination by the SEC, the Public Company Accounting
Oversight Board, or any self-regulatory organization; or (ii) an investigation by Congress,
or any other authority of the federal government, or a state Attorney General or securities
regulatory authority?
Question 8:
State whether you are the subject or target of a criminal investigation or have been
convicted of a criminal violation in connection with the information you are submitting to
the SEC.
Question 9:
If you answered “Yes” to any of questions 1 through 8, provide additional details relating
to your response.
SECTION F: Whistleblower’s Declaration.
You must sign this Declaration if you are submitting this information pursuant to the SEC
whistleblower program and wish to be considered for an award. If you are submitting your
information anonymously, you must still sign this Declaration, and you must provide your
attorney with the original of this signed form.
If you are not submitting your information pursuant to the SEC whistleblower program, you do not
need to sign this Declaration.
SECTION G: COUNSEL CERTIFICATION
If you are submitting this information pursuant to the SEC whistleblower program and are
doing so anonymously, your attorney must sign the Counsel Certification section.
If you are represented in this matter but you are not submitting your information pursuant to the
SEC whistleblower program, your attorney does not need to sign the Counsel Certification Section.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
OMB APPROVAL
OMB Number: . . . . . 3235-0686
Expires: . . . . . . August 31, 2014
Estimated average burden
hours per response. . . . . . . . . 2
FORM WB-APP
APPLICATION FOR AWARD FOR ORIGINAL INFORMATION SUBMITTED
PURSUANT TO SECTION 21F OF THE SECURITIES EXCHANGE ACT OF 1934
A.
APPLICANT’S INFORMATION (REQUIRED FOR ALL SUBMISSIONS)
1. Last Name
First
Social
Security No.
M.I.
Apartment/
Unit #
2. Street Address
City
State/
Province
ZIP Code
3. Telephone
Alt. Phone
E-mail Address
B.
Country
ATTORNEY’S INFORMATION (IF APPLICABLE – SEE INSTRUCTIONS)
1. Attorney’s name
2. Firm Name
3. Street Address
City
State/
Province
ZIP Code
4. Telephone
Fax
E-mail Address
Country
C. TIP/COMPLAINT DETAILS
1. Manner in which original information was submitted to SEC:
SEC website
2a. Tip, Complaint or Referral number
Mail
Fax
Other
______________
2b. Date TCR referred to in 2a submitted to SEC
/
/
2c. Subject(s) of the Tip, Complaint or Referral:
D. NOTICE OF COVERED ACTION
1. Date of Notice of Covered Action to which claim relates:
/
/
2. Notice Number:
3a. Case Name
3b. Case Number
E. CLAIMS PERTAINING TO RELATED ACTIONS
1. Name of agency or organization to which you provided your information
2. Name and contact information for point of contact at agency or organization, if known.
3a. Date you provided your information
4a. Case Name
F.
/
/
3b. Date action filed by agency/organization
/
/
4b. Case number
ELIGIBILITY REQUIREMENTS AND OTHER INFORMATION
1. Are you, or were you at the time you acquired the original information you submitted to us, a member, officer or employee of the
Department of Justice, the Securities and Exchange Commission, the Comptroller of the Currency, the Board of Governors of the Federal
Reserve System, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision; the Public Company Accounting Oversight
Board; any law enforcement organization; or any national securities exchange, registered securities association, registered clearing agency,
the Municipal Securities Rulemaking Board?
YES
NO
SEC2851 (08-11)
1
2. Are you, or were you at the time you acquired the original information you submitted to us, a member, officer or employee of a foreign
government, any political subdivision, department, agency, or instrumentality of a foreign government, or any other foreign financial regulatory
authority as that term is defined in Section 3(a)(52) of the Securities Exchange Act of 1934 (15 U.S.C. §78c(a)(52))?
YES
NO
3. Did you obtain the information you are providing to us through the performance of an engagement required under the federal securities
NO
laws by an independent public accountant?
YES
4. Did you provide the information identified in Section C above pursuant to a cooperation agreement with the SEC or another agency or
NO
organization?
YES
5. Are you a spouse, parent, child, or sibling of a member or employee of the Commission, or do you reside in the same household as a
member or employee of the Commission?
YES
NO
6. Did you acquire the information you are providing to us from any person described in questions F1 through F5?
YES
NO
7. If you answered “yes” to any of questions 1 through 6 above, please provide details. Use additional sheets if necessary.
8a. Did you provide the information identified in Section C above before you (or anyone representing you) received any request, inquiry or
demand that relates to the subject matter of your submission (i) from the SEC, (ii) in connection with an investigation, inspection or
examination by the Public Company Accounting Oversight Board, or any self-regulatory organization; or (iii) in connection with an investigation
by the Congress, any other authority of the federal government, or a state Attorney General or securities regulatory authority?
YES
NO
8b. If you answered “yes” to question 8a, please provide details. Use additional sheets if necessary.
9a. Are you currently a subject or target of a criminal investigation, or have you been convicted of a criminal violation, in connection with the
information upon which your application for an award is based?
YES
NO
9b. If you answered “Yes” to question 9a, please provide details. Use additional sheets if necessary.
G. ENTITLEMENT TO AWARD
Explain the basis for your belief that you are entitled to an award in connection with your submission of information to us, or to another agency
in a related action. Provide any additional information you think may be relevant in light of the criteria for determining the amount of an award
set forth in Rule 21F-6 under the Securities Exchange Act of 1934. Include any supporting documents in your possession or control, and
attach additional sheets, if necessary.
H. DECLARATION
I declare under penalty of perjury under the laws of the United States that the information contained herein is true, correct and complete to the
best of my knowledge, information and belief. I fully understand that I may be subject to prosecution and ineligible for a whistleblower award
if, in my submission of information, my other dealings with the SEC, or my dealings with another authority in connection with a related action, I
knowingly and willfully make any false, fictitious, or fraudulent statements or representations, or use any false writing or document knowing
that the writing or document contains any false, fictitious, or fraudulent statement or entry.
Date
Signature
SEC2851 (08-11)
2
Privacy Act Statement
This notice is given under the Privacy Act of 1974. We are authorized to request information from you by
Section 21F of the Securities Exchange Act of 1934. Our principal purpose in requesting this information
is to assist in our evaluation of your eligibility and other factors relevant to our determination of whether to
pay a whistleblower award to you under Section 21F of the Exchange Act.
However, the information provided may be used by SEC personnel for purposes of investigating possible
violations of, or to conduct investigations authorized by, the federal securities law; in proceedings in which
the federal securities laws are in issue or the SEC is a party; to coordinate law enforcement activities
between the SEC and other federal, state, local or foreign law enforcement agencies, securities self
regulatory organizations, and foreign securities authorities; and pursuant to other routine uses as
described in SEC-42 “Enforcement Files.”
Furnishing this information is voluntary, but a decision not do so, or failure to provide complete
information, may result in our denying a whistleblower award to you, or may affect our evaluation of the
appropriate amount of an award. Further, if you are submitting this information for the SEC whistleblower
program and you do not execute the Declaration, you may not be considered for an award.
Questions concerning this form may be directed to the SEC Office of the Whistleblower, 100 F Street, NE,
Washington, DC 20549-5631, Tel. (202) 551-4790, Fax (703) 813-9322.
General
•
This form should be used by persons making a claim for a whistleblower award in connection with
information provided to the SEC or to another agency in a related action. In order to be deemed
eligible for an award, you must meet all the requirements set forth in Section 21F of the Securities
Exchange Act of 1934 and the rules thereunder.
•
You must sign the Form WB-APP as the claimant. If you provided your information to the SEC
anonymously, you must now disclose your identity on this form and your identity must be verified
SEC2851 (08-11)
3
in a form and manner that is acceptable to the Office of the Whistleblower prior to the payment of
any award.
o
If you are filing your claim in connection with information that you provided to the SEC,
then your Form WB-APP, and any attachments thereto, must be received by the SEC
Office of the Whistleblower within sixty (60) days of the date of the Notice of
Covered Action to which the claim relates.
o If you are filing your claim in connection with information you provided to another agency
in a related action, then your Form WB-APP, and any attachments there to, must be
received by the SEC Office of the Whistleblower as follows:
•
If a final order imposing monetary sanctions has been entered in a related action
at the time you submit your claim for an award in connection with a Commission
action, you must submit your claim for an award in that related action on
the same Form WB-APP that you use for the Commission action.
•
If a final order imposing monetary sanctions in a related action has not been
entered at the time you submit your claim for an award in connection with a
Commission action, you must submit your claim on Form WB-APP within
sixty (60) days of the issuance of a final order imposing sanctions in the
related action.
•
You must submit your Form WB-APP to us in one of the following two ways:
o
By mailing or delivering the signed form to the SEC Office of the Whistleblower, 100 F
Street
NE, Washington, DC 20549-5631; or
o
SEC2851 (08-11)
By faxing the signed form to (703) 813-9322.
4
Instructions for Completing Form WB-APP
Section A: Applicant’s Information
Questions 1-3: Provide the following information about yourself:
•
First and last name, and middle initial
•
Complete address, including city, state and zip code
•
Telephone number and, if available, an alternate number where you can be reached
•
E-mail address
Section B: Attorney’s Information. If you are represented by an attorney in this matter, provide
the information requested. If you are not representing an attorney in this matter, leave this
Section blank.
Questions 1-4: Provide the following information about the attorney representing you in this matter:
•
Attorney’s name
•
Firm name
•
Complete address, including city, state and zip code
•
Telephone number and fax number, and
•
E-mail address.
Section C: Tip/Complaint Details
Question 1:
Indicate the manner in which your original information was submitted to the SEC.
Question 2a:
Include the TCR (Tip, Complaint or Referral) number to which this claim relates.
Question 2b:
Provide the date on which you submitted your information to the SEC.
Question 2c:
Provide the name of the individual(s) or entity(s) to which your complaint related.
Section D: Notice of Covered Action
The process for making a claim for a whistleblower award begins with the publication of a “Notice
of a Covered Action” on the Commission’s website. This notice is published whenever a judicial
or administrative action brought by the Commission results in the imposition of monetary
SEC2851 (08-11)
5
sanctions exceeding $1,000,000. The Notice is published on the Commission’s website
subsequent to the entry of a final judgment or order in the action that by itself, or collectively with
other judgments or orders previously entered in the action, exceeds the $1,000,000 threshold.
Question 1:
Provide the date of the Notice of Covered Action to which this claim relates.
Question 2:
Provide the notice number of the Notice of Covered Action.
Question 3a:
Provide the case name referenced in Notice of Covered Action.
Question 3b:
Provide the case number referenced in Notice of Covered Action.
Section E: Claims Pertaining to Related Actions
Question 1:
Provide the name of the agency or organization to which you provided your information.
Question 2:
Provide the name and contact information for your point of contact at the agency or
organization, if known.
Question 3a:
Provide the date on which that you provided your information to the agency or
organization referenced in question E1.
Question 3b:
Provide the date on which the agency or organization referenced in question E1 filed the
related action that was based upon the information you provided.
Question 4a:
Provide the case name of the related action.
Question 4b:
Provide the case number of the related action.
Section F: Eligibility Requirements
Question 1:
State whether you are currently, or were at the time you acquired the original information
that you submitted to the SEC a member, officer, or employee of the Department of
Justice; the Securities and Exchange Commission; the Comptroller of the Currency, the
Board of Governors of the Federal Reserve System, the Federal Deposit Insurance
Corporation, the Office of Thrift Supervision; the Public Company Accounting Oversight
Board; any law enforcement organization; or any national securities exchange, registered
securities association, registered clearing agency, the Municipal Securities Rulemaking
Board
SEC2851 (08-11)
6
Question 2:
State whether you are, or were you at the time you acquired the original information you
submitted to the SEC, a member, officer or employee of a foreign government, any
political subdivision, department, agency, or instrumentality of a foreign government, or
any other foreign financial regulatory authority as that term is defined in Section 3(a)(52)
of the Securities Exchange Act of 1934.
•
Section 3(a)(52) of the Exchange Act (15 U.S.C. §78c(a)(52)) currently defines
‘‘foreign financial regulatory authority’’ as “any (A) foreign securities authority, (B)
other governmental body or foreign equivalent of a self-regulatory organization
empowered by a foreign government to administer or enforce its laws relating to
the regulation of fiduciaries, trusts, commercial lending, insurance, trading in
contracts of sale of a commodity for future delivery, or other instruments traded
on or subject to the rules of a contract market, board of trade, or foreign
equivalent, or other financial activities, or (C) membership organization a function
of which is to regulate participation of its members in activities listed above.”
Question 3:
Indicate whether you acquired the information you provided to the SEC through the
performance of an engagement required under the securities laws by an independent
public accountant.
Question 4:
State whether you provided the information submitted to the SEC pursuant to a
cooperation agreement with the SEC or with any other agency or organization.
Question 5:
State whether you are a spouse, parent, child or sibling of a member or employee of the
Commission, or whether you reside in the same household as a member or employee of
the Commission.
Question 6:
State whether you acquired the information you are providing to the SEC from any
individual described in Question 1 through 5 of this Section.
Question 7:
If you answered “yes” to questions 1 though 6, please provide details.
Question 8a:
State whether you provided the information identified submitted to the SEC before you (or
anyone representing you) received any request, inquiry or demand from the SEC,
SEC2851 (08-11)
7
Congress, or any other federal, state or local authority, or any self regulatory
organization, or the Public Company Accounting Oversight Board about a matter to which
the information your submission was relevant.
Question 8b:
If you answered “no” to questions 8a, please provide details. Use additional sheets if
necessary.
Question 9a:
State whether you are the subject or target of a criminal investigation or have been
convicted of a criminal violation in connection with the information upon which your
application for award is based.
Question 9b:
If you answered “yes” to question 9a, please provide details, including the name of the
agency or organization that conducted the investigation or initiated the action against
you, the name and telephone number of your point of contact at the agency or
organization, if available and the investigation/case name and number, if applicable. Use
additional sheets, if necessary. If you previously provided this information on Form WBDEC, you may leave this question blank, unless your response has changed since the
time you submitted your Form WB-DEC.
Section G: Entitlement to Award
This section is optional. Use this section to explain the basis for your belief that you are
entitled to an award in connection with your submission of information to us or to another agency
in connection with a related action. Specifically address how you believe you voluntarily provided
the Commission with original information that led to the successful enforcement of a judicial or
administrative action filed by the Commission, or a related action. Refer to Rules 21F-3 and 21F4 under the Exchange Act for further information concerning the relevant award criteria. You may
attach additional sheets, if necessary.
Rule 21F-6 under the Exchange Act provides that in determining the amount of an award, the
Commission will evaluate the following factors: (a) the significance of the information provided by
a whistleblower to the success of the Commission action or related action; (b) the degree of
assistance provided by the whistleblower and any legal representative of the whistleblower in the
SEC2851 (08-11)
8
Commission action or related action; (c) the programmatic interest of the Commission in deterring
violations of the securities laws by making awards to whistleblowers who provide information that
leads to the successful enforcement of such laws; and (d) whether the award otherwise enhances
the Commission’s ability to enforce the federal securities laws, protect investors, and encourage
the submission of high quality information from whistleblowers. Address these factors in your
response as well.
Additional information about the criteria the Commission may consider in determining the amount
of an award is available on the Commission’s website at [insert WBO web page address]
Section H: Declaration
This section must be signed by the claimant.
SEC2851 (08-11)
9