FALSE CLAIMS ACT INVESTIGATION DEFENSE 

I Believe I May Be Under Investigation for Violating the False Claims Act. Should I Contact an Attorney?

Yes. False Claims Act investigation can move very quickly at times. False Claims investigations are also potentially serious. Retaining competent counsel is therefore critical.

What is a Civil Investigative Demand?

You may receive a Civil Investigative Demand if the Government is investigating violations of the False Claims Act. When a whistleblower or relator files a complaint under seal alleging violations of the False Claims Act pursuant to 31 U.S.C. Section 3731 the government must then further investigate the allegations contained in the sealed complaint to determine if the government should intervene and take over the case. The Civil Investigative Demand statute for False Claims Act investigations is 31 U.S.C. Section 3733.

One of the main purposes of serving a Civil Investigative Demand is to confirm whether the allegations contained in whistleblower complaints are true and to develop other, potentially valuable investigative leads and sources.

Who May Serve a Civil Investigative Demand?

Assistant U.S. Attorneys from the Civil Division decide when and to whom to send a Civil Investigative Demand. Civil Investigative Demands are therefore one of the primary tools used to investigate and confirm the allegations contained in whistleblower complaints alleging False Claims Act violations.

The government may also serve a Civil Investigative Demand on any person in any jurisdiction in the United States and in any foreign country.

False Claims Act Investigation. I Received a Civil Investigative Demand, Will the Civil Investigative Demand Tell Me What the Purpose of the Demand is?

If the Civil Investigative Demand requests oral testimony from the witness, then the Civil Investigative Demand must describe the general purpose for which the demand is being issued and the general nature of the testimony, including the “primary areas of inquiry.”

What Information Must I Provide in Response to a Civil Investigative Demand?

A Civil Investigative Demand may request that the person receiving the Civil Investigative Demand:

(1) Produce documents;

(2) Submit responses to interrogatories; or

(3) Appear in person to provide sworn testimony.

 I Received a Civil Investigative Demand, is the Government Investigating Me, Personally?

Every government investigation is different, but when a person has received a Civil Investigative Demand, there is a whistleblower and there is an ongoing investigation into the allegations made by the whistleblower involving false and fraudulent claims made to the U.S. government.

Civil Investigative Demands may be served on persons whom are not targets of any investigation, but whom may have valuable information relating to the investigation. Sometimes a Civil Investigative Demand may be served on persons whom may be potentially vulnerable to criminal charges, for example, health care fraud or violations of the Anti-Kickback Statute.

Can the Government Share the Information or Testimony That I Provide in Response to the Civil Investigative Demand?

Attorneys responsible for sending the Civil Investigative Demand may share testimony and documents with other sections or divisions of the U.S. Attorney’s Office and documents may be used in a future grand jury proceeding or investigation.

What Happens if I Do Not Respond to a Civil Investigative Demand?

The government may file a petition to enforce the Civil Investigative Demand in U.S. district court. The court may also enter an order requiring the person refusing to respond to a Civil Investigative Demand to appear to give testimony, to respond to interrogatories, or to produce documents.

Can I Challenge a Civil Investigative Demand?

There are limited grounds upon which a person receiving a Civil Investigative Demand may file a petition to set aside a Civil Investigative Demand.

If I Appear in Response to the Civil Investigative Demand, Must I Answer All of the Questions?

There are limited circumstances under which a person may refuse to answer questions during an examination. The testimony requested pursuant to a Civil Investigative Demand is unlike the testimony requested during a deposition and objections are limited.

The Civil Investigative Demand statute also permits a person receiving a Civil Investigative Demand to assert the Fifth Amendment in response to each and every question. But even that choice requires a careful analysis that should not be done without the assistance and guidance of an experienced attorney. The statute also permits the person, during questioning, to consult with counsel in confidence prior to answering each and every question.

Can an Attorney Represent Me to Respond to a Civil Investigative Demand?

An  attorney may be represent a person in responding to a Civil Investigative Demand and any person receiving a Civil Investigative Demand should involve counsel in that process as early as possible.