Protecting Privilege In FCA Cases From Start To Finish

The False Claims Act has been a hot area of litigation for years, and current statistics signal that this trend will not end any time soon. With lucrative rewards for whistleblowers and the possibility of treble damages and steep penalties, companies cannot risk failing to thoroughly investigate False Claims Act allegations. In doing so, however, companies should be wary of unintentionally waiving or failing to establish privilege. This article will address six of the most common privilege pitfalls companies should be aware of in addressing False Claims Act cases.

Choice of Investigators -

After learning of a whistleblower complaint, companies must quickly analyze the allegations to determine the appropriate scope of the investigation and the best party to conduct the investigation. Factors to consider include the seriousness and credibility of the allegations based on the background of the whistleblower, the detail and plausibility of the allegations, and the potential liability if confirmed. The most serious of claims should be handled by outside counsel, while less serious complaints might be best handled by in-house counsel or, in some instances, even by human resources. The privilege ramifications of the choice of investigator, however, must be carefully considered to ensure that the company establishes and maintains privileged status for the investigation.

Originally published in Law360 on May 24, 2017.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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