August 26, 2016 - Posts

It’s Good to be an Original: The Need to be an “Original Source” as a Whistleblower

Under the False Claims Act (FCA), whistleblowers, or “relators,” who expose fraud on the government can bring a qui tam lawsuit on behalf of the government and can receive a share of the recovery as their reward. In 2015, the government paid over $600 million in rewards to individuals who filed qui tams.  Qui tam cases are a powerful way for whistleblowers to help the government stop many kinds of fraud, including fraud on the Medicare and Medicaid programs, fraud committed by defense contractors, and fraud committed by any individual or entity that does business with the government.


The FCA will only allow an award to a whistleblower who is an “original source.” Courts generally dismiss qui tam actions based upon allegations or transactions that are already public, such as congressional hearings, federal criminal, civil or administrative proceedings, media reports, or other public disclosures, unless the person bringing the action is the “original source” of the information. Thus, even though certain facts may already be “public,” a whistleblower who was the “original source” of those facts may still qualify to share in the government’s recovery. 


Under the FCA, a whistleblower may qualify as an “original source” in two ways. First, if a whistleblower voluntarily discloses information to the government before public disclosure has occurred, the whistleblower will be considered an original source.  Second, a whistleblower “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 government before filing” a qui tam lawsuit will be considered an “original source.”  31 U.S.C. § 3730(e)(4)(B).


The determination of whether an individual is an “original source” is complicated and can involve a tremendous amount of nuance. For example, the information must be disclosed to an appropriate government official or agency such as the U.S. Attorney’s Office. Additionally, the “original source” disclosure made to the government by the whistleblower must include information that actually supports an allegation of fraud, not just suspicions or speculation of fraud. 


Often a determination of whether an individual is a true “original source” hinges upon the whistleblower getting appropriate and effective advice early on from a lawyer with experience navigating these complicated rules. We have represented numerous whistleblowers and counseled them on “original source” issues. To learn more about our Whistleblower and Qui Tam practice, click here.

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