Skip to Content

Delaware (DE) False Claims Act and Qui Tam: Lawyers and Attorneys at Law

Reporting Fraud Under The Delaware False Claims Act

Under the Delaware False Claims Act in effect until July 16, 2009 only an "affected person" could bring a False Claims Act action. The Delaware False Claim Act defined "affected person" as a labor organization or a current or former employee of a person liable for a false claims violation. Del. Code Ann. tit. 6, § 1203 (2000). However, on July 16, 2009, an amendment to the Delaware False Claim Act eliminated this limitation allowing "any person or labor organization" to bring a suit under the Delaware False Claim Act.  Del. Code Ann. Tit. 6, § 1202(b)(1) (2009).

DE Qui Tam Action

Additionally, under the Delaware False Claims Act prior to July 16, 2009, if the government declined to take over a qui tam action, the whistleblower and Delaware qui tam lawyer(s) bringing the action shall have the right to conduct the qui tam action only if the Delaware Attorney General determines that there is substantial evidence that the violation has occurred.  Del. Code Ann. Tit. 6, § 1203(b)(4)(b) (2000).

What Happens if Government Does Not Intervene? (Example Delaware)

Under this prior version of the Delaware False Claims Act, in cases where the government declines to intervene, defendants may argue on a motion to dismiss that the whistleblower's claim has not met the prerequisites to pursue claims under the Delaware False Claims Act because the government did not issue a written "substantial evidence determination" allowing him/her to proceed with an action under the Delaware False Claims Act.  However, the whistleblower and his/her Delaware qui tam lawyer could argue in response, that dismissal under Rule 12(b)(6) on this basis is inappropriate.  See United States ex rel. King et al. v. Solvay S.A., et al., 2011 U.S. Dist. LEXIS 117590, *126-9 (S.D. Tex. October 12, 2011) (denying defendant's motion to dismiss claims under the Delaware False Claims Act on the substantial evidence determination basis).  The whistleblower and/or his/her respective Delaware qui tam lawyer could argue that the Delaware False Claims Act does not state that Delaware must notify the court of its determination regarding substantial evidence, and the whistleblower and Delaware qui tam lawyers are not required on a Rule 12(b)(6) motion to come forward with such evidence.  Id. at *128.

Delaware False Claims Act: New Law and Provision in 2009

The Delaware False Claims Act was amended on July 16, 2009, repealing the "substantial evidence" determination. The new provision simply requires Delaware to either proceed with the action or notify the court that it declines, "in which case the private party bringing the action shall have the right to conduct the action." Del. Code tit. 6, § 1203(b)(3)(b) (2009). Thus, a whistleblower and his/her Delaware qui tam lawyer that pursues claims under the Delaware False Claims Act after July 16, 2009 is not restricted by the "substantial evidence determination."

For more Information on whistleblower claims from an attorney, please contact Shauna Itri at sitri@bm.net or 215-875-3049. To read further about What Whistleblower Clients Can Expect From Our Lawyers, click here.

For further reading:
Picking a False Claims Act & Qui Tam Lawyer in Delaware
Reporting Fraud Under the State False Claims Acts
Why You Want the Government to Intervene on a Qui Tam Case?
Whistleblowers, Qui Tam & False Claims Act Legal Blog

 

View Disclaimer here.