We miss Sen. David Brinkley, who stopped this bad legislation last year. Now it’s moving forward as expected, promoted by left-wing Sen. Jamie Raskin, who’s trying to become my Congressman here in CD-8. [Maryland Reporter]
Tag Archives: Maryland False Claims Act
I’ve blogged several times in this space about the Maryland False Claims Act, whose passage was narrowly averted in the last legislature, and I’ve noted critics’ concern that its ambiguous language could support private lawsuits challenging the tax bills of Maryland companies, with a verdict or settlement resulting in a percentage payment to the bounty-hunting complainant. Now I’ve got a short piece in Reason tracing where such statutes can lead when loosely worded in a way susceptible to exploitation by clever lawyers: a Philadelphia complainant is using New York’s liberally worded False Claims Act to challenge the federal taxes of a Philadelphia-based financial giant, the Vanguard Group, for what could be a very rich bounty payoff should the case settle. As I point out, “by getting pro-plaintiff laws through the legislature in just a few states — New York liberalized its law four years ago — advocates can set the stage for a nationwide informant push.”
P.S. My earlier writing also drew a two-part (!) indignant response from a plaintiff’s lawyer who makes a business of filing this type of suit. The most hilarious bit is Mr. Kitts’s after-the-fact claim that the unseating of (opponent) David Brinkley by (supporter) Michael Hough constituted some sort of “referendum” on the MFCA. As a resident of District 4 I never did meet a voter during the whole primary season who told me this (alas) obscure legislative controversy made any difference in how they cast their ballot.
Today’s Frederick News-Post carries a letter to the editor ostensibly praising Sen. David Brinkley as an ally of liberal Democrats, and signed by Montgomery County Del. Sam Arora (D-Rockville). If you took it at face value, you got fooled. Here’s my comment in response:
Look at this letter more closely. It is intended to hurt Brinkley, not help him, with conservative Republican primary voters. Whatever would motivate retiring Del. Arora, a very liberal Montgomery County Democrat, to do that? Maybe it’s that Sen. Brinkley single-handedly derailed the False Claims Act sponsored by Del. Arora which would have stood as the major legislative accomplishment of his brief tenure in Annapolis (and would have pleased some wealthy trial lawyers, even as it appalled business groups). I conclude that Arora: 1) bears a deep grudge against Brinkley precisely because of Brinkley’s success in blocking Democratic legislation; 2) doesn’t mind doing a favor to Brinkley’s opponent, who broke with most Republicans to back Arora’s pro-lawsuit bill.
Arora, incidentally, is departing the House of Delegates following a furious revolt by his fellow progressives who accused him of double-dealing on the same-sex marriage issue, where he first raised money and endorsements in quantity from marriage advocates and then did a flip-flop once in office, drawing charges from former allies of “dishonor,” “betrayal” and “lies”, “knife in back”, “disgraceful … outrage” and more. Prominent Democratic strategist Hilary Rosen wrote to Arora: “I think your career is over.”
Maybe not quite over, if he can succeed in hurting Sen. Brinkley as intended. But if Arora wants to acquire a lifelong reputation for double-dealing on every issue he touches, his letter in today’s FNP puts him well on the way.
I’ve been writing and speaking out for years about the evils of the federal False Claims Act and its state-level equivalents, but I certainly never expected the law to wind up becoming an issue in my hometown race for state senator. Yet that’s what has happened in Maryland’s District 4, where as Bethany Rodgers of the Frederick News-Post reported, candidates David Brinkley and Michael Hough have traded charges vigorously on the issue. Del. Hough (unusually for a Republican) crossed over to support the proposed Maryland version of the FCA in this year’s legislative session, but the bill failed on the last day of session when Brinkley, considered a master of the intricacies of the legislative process, used a procedural maneuver to kill the bill single-handedly, bitterly disappointing the bill’s sponsors, liberal Montgomery County Democrats Brian Frosh and Sam Arora, as well as the state’s trial lawyer lobby, which had made the bill a priority.
Del. Hough defended his position on Facebook as follows:
And at Red Maryland, a blog that has endorsed Hough, Brian Griffiths seeks to defend Hough from what he calls “bizarre accusations that he has sided with trial lawyers” in supporting the FCA, though such accusations would seem no more than baldly true (the question is hardly whether he sided with them, but whether he was right to do so). “I have absolutely no idea on what planet it is a conservative ideal to oppose harsher penalties for people who wish to defraud the people out of taxpayer funds.”
So what do these laws do, and why have they turned into a flashpoint for intense opposition from the business community, to the point where the Maryland Chamber of Commerce would vocally oppose HB 867 as “burdensome and unfair” in its provisions and Maryland Business for Responsive Government would treat it as a key vote, to Hough’s disadvantage?
Based on a Civil War era statute but drastically expanded in 1986 into its modern form, the False Claims Act allows freelance informers to accuse entities dealing with the government of fraud, and then pocket a hefty share of the proceeds of a resulting judgment or settlement. To encourage suit-filing, the law awards treble or other multiple damages, attorney’s fees, stiff statutory damages and other enhancers. The model in effect is privatized law enforcement — what could go wrong? And indeed the idea appealed for a time to many modern Republicans, even Ronald Reagan — until actual experience began to show its flaws:
- The law has made rich various employees who participated in frauds themselves, or who failed to inform higher-ups of their discovery of accounting problems (which of course might have upset the chance of bagging an FCA award for themselves). It has even provided a reason to *not* report fraud too quickly, as in the famous case of a GE employee later accused by chairman John Welch of having “sat back and waited in the weeds so the damages would mount.”
- While the law has been used against many genuine frauds, it also gets deployed against what many would see as simple differences of opinion in complicated, high-stakes areas of government contracting — reimbursement formulas, overhead rates — as well as against industry customs accepted as normal by the players and not challenged by the government at the time. Because stakes are so high — including treble or other multiple damages — defendants often settle for some fraction of the demand. The law thus incentivizes actions based on gray areas of contracting regulation with high stakes over actions based on definite or classic frauds where recovery will not be large (say, because the fraudster will be bankrupt.)
- Animal rights activists have used the law to go after a cancer researcher who received federal funds for animal research, supposedly on the theory that he misrepresented the results of his research. That’s one of many instances in which the law is used to pursue vendettas or for extra legal leverage in disputes between private actors — say, between labor unions or community organizers and the companies they attack.
- A hedge fund was found to have sold short the stock of a target firm (betting that its stock would fall) and then filed a False Claims Act naming the company, predictably bringing about the very stock drop it had bet on.
By the time the business community had begun to mobilize to point out the issues of fairness and practicality at stake, the law had made a group of lawyers immensely rich, and they have formed the nucleus of a powerful lobby with many allies in elected office — mostly Democrats, but also including a Republican here and here — to defend the law and push for its further expansion. By 2009, when another expansion was proposed, Hans von Spakovsky and Brian Walsh of the Heritage Foundation were writing that: “Tort lawyers are about to get another big payoff from Congress and the Obama administration for the hundreds of millions of dollars they contributed to candidates in the last election cycle (over 75% of which went to Democrats). … amendments to the federal False Claims Act that will hurt our economy but make the trial lawyers very happy indeed.” (full report). Inserting FCA-like provisions into the Dodd-Frank bill was a key objective of liberal Democrats, and their success in doing so is seen by many businesses as among the worst features of that law.
The proposed Maryland version would have gone much further — with consequently even greater risk of abuse — than the federal FCA or its various state equivalents. For example, it had a much less usable statute of limitations, meaning that clever lawyers could reach back to sue over long-distant supposed misdeeds. And as the Council on State Taxation warned, because it had vague language that did not exclude tax disputes, it might be seized on to justify suits by Lawyer A demanding a retroactive hike in the tax bill of Company B — plus multiple damages, lawyers’ fees, etc. — and a court might agree to let such a claim go forward.
Del. Hough does not seem to have been very persuasive in convincing Republican colleagues that HB 867 represented the true conservative position. (Virtually every Democrat voted for the bill.) Every single Republican member of the Senate joined in siding with Sen. Brinkley’s position against Del. Hough’s, and so did the great majority of Republican delegates, including every other GOP member of the Frederick County delegation. (That includes Hough’s own slate-mate Kathy Afzali, as well as Kelly Schulz and Patrick Hogan.) Of big-time conservatives in the House of Delegates, virtually every one sided with Brinkley’s position over Hough’s, the most notable exception being Del. Michael Smigiel of the Eastern Shore.
Smigiel, it should be noted, has the good excuse of being a trial lawyer in his day job.