Reporting Fraud Under The Delaware False Claims
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
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
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 firstname.lastname@example.org or
215-875-3049. To read further about What
Whistleblower Clients Can Expect From Our Lawyers, click
For further reading:
Picking a False Claims Act & Qui Tam Lawyer in Delaware
Fraud Under the State False Claims Acts
Why You Want the
Government to Intervene on a Qui Tam Case?
Qui Tam & False Claims Act Legal Blog
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