George S. Bell, III, Senior Counsel Tennessee Attorney General s Office

Transcription

1 George S. Bell, III, Senior Counsel Tennessee Attorney General s Office Karen H. Stachowski, Assistant Commissioner Tennessee Dept. of Environment & Conservation

2 INCEPTION Feb Atty. Gen. Robert Cooper announced environmental protection as one of three top priorities of his office -- along with consumer protection and health care fraud and abuse, particularly in TennCare. -The Commercial Appeal, Richard Locker (Feb. 9, 2007) Based on a range of intelligence available in 2007, the Petroleum Underground Storage Tank (UST) program was a logical target for the Department to work with the Office of the Attorney General on a joint enforcement initiative focusing on repeat violators, the submittal of false information, false claims against the UST Fund, and subrogation actions, TDEC Deputy Commissioner Paul Sloan.

3 FOUR FOCUS AREAS (1) REPEAT VIOLATORS There are other cases where someone has been the subject of one or more civil or administrative actions and it has become apparent that the past regulatory actions did little or nothing to prompt that person to change his or her ways. -- Attorney General Robert Cooper, The Commercial Appeal, Richard Locker (Feb. 9, 2007)

4 FOUR FOCUS AREAS (2) NON-OWNER/OPERATOR ACTIONS And now that I have this position, I intend for our environmental enforcement, both civil and criminal, to be vigorous, working hand in hand with (TDEC). " - Attorney General Robert Cooper, The Commercial Appeal, Richard Locker (Feb. 9, 2007)

5 FOUR FOCUS AREAS (3) FALSE STATEMENTS... we are going to come down on it with both feet. We're going to skip the administrative process and go straight to court -- including criminal prosecutions -- Cooper said. --The Commercial Appeal, Richard Locker (Feb. 9, 2007)

6 FOUR FOCUS AREAS (4) FALSE CLAIMS When TDEC's administrative enforcement measures fail to compel compliance, the Attorney General and his staff are important partners in our work to preserve and protect the right of the people of Tennessee to a safe and clean environment and proper use of program resources, said TDEC Deputy Commissioner Paul Sloan.

7 IMPLEMENTATION (1) REPEAT VIOLATORS Cooper v. Coffman Oil Inc., Davidson County Chancery Court, No II Settlement: $181,000 [$105,000 non-contingent & $76,000 contingent] & Tank School Cooper v. Willoughby, Inc., Davidson County Chancery Court, No II Settlement: $201,250 [ $50, non-contingent & $150, contingent] Three other matters referred to the Attorney General s Office

8 IMPLEMENTATION (2) NON-OWNER/OPERATOR ACTIONS Cooper v. Phillips Sale & Service, Inc. and Loyd Shores Trucking Co., Inc., Davidson County Chancery Court, No IV Involving $578, reimbursed costs; $17, pending costs Cooper v. Petroleum One Services & Sales, Inc. and Bruce W. Hill, Davidson County Chancery Court, No Involving $29, reimbursed costs

9 IMPLEMENTATION (3) FALSE STATEMENTS No complaints filed to date 1 matter referred to Attorney General Office 2 matters referred to USEPA Region 4

10 IMPLEMENTATION (4) FALSE CLAIMS Cooper v. Mixon-Nollner Oil Co., Inc, et al, Davidson County Circuit Court, No II Settlement with 2 of 4 defendants $73, [$10,000 penalty + $63, damages] On-going litigation with remaining 2 defendants Five other matters referred to the Attorney General s Office

11 FALSE CLAIMS In Depth Federal Statute 31 U.S.C. 3729, et seq. Deficit Reduction Act Non-healthcare FCA States California, Colorado, Delaware, District of Columbia, Floriad, Hawaii, Illinois, Indiana, Kansas, Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Rhode Island, Tennessee, Washington, Utah, and Viriginia Anticipate more cooperation among government agencies.

12 FALSE CLAIMS In Depth Damages: Not less than 2x nor more than 3x the damages sustained because of act of person. [See, 31 U.S.C. 3729(a)(1)] Civil Penalties: $5,000 to $10,000 per false claim [See, 31 U.S.C. 3729(a)(1)] Liable for cost of a civil action brought to recover any of the penalties or damages. [See, 31 U.S.C. 3729(a)(1)]

13 FALSE CLAIMS In Depth Relators / Whistleblowers Attorney General obligated to investigate allegations and decide if intervention is appropriate. Lawsuit generally remains under seal until intervention decision is made by the government. If government intervenes, it has primary responsibility to prosecute lawsuit. Court may award Qui tam plaintiff between 15%-30% of the aforementioned proceeds. [See, 31 U.S.C. 3730(d)] Hard work of government employees

14 FALSE CLAIMS In Depth Nine Ways a Person May Violate the False Claims Act [See, 31 U.S.C. 3729(a)(1)]: Knowingly present, or cause to be presented, a false or fraudulent claim for payment or approval; Knowingly make, use, or cause to be made or used, a false record or statement material to a false or fraudulent claim;

15 FALSE CLAIMS In Depth Nine Ways cont d: Have possession, custody, or control of property or money used, or to be used, by the government, and knowingly delivering or causing to be delivered, less property than all of the amount or property; Is authorized to make or deliver a document certifying receipt of property used, or to be used, by the government and, intending to defraud the government, makes or delivers the receipt without completely knowing that the information in the receipt is true;

16 FALSE CLAIMS In Depth Nine Ways cont d: Knowingly buy, or receive as a pledge of an obligation or debt, public property from an officer or employee of the government, or a member of the Armed Forces, who lawfully has no right to sell or pledge said property; Knowingly make, use, or cause to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the government, or knowingly conceal or knowingly and improperly avoid or decrease an obligation to pay or transmit money or property to the government;

17 FALSE CLAIMS In Depth Nine Ways cont d: Conspire to commit one of the foregoing violations. [Per Model Act; Not in federal statute] Is beneficiary of an inadvertent submission of a false claim to any employee, officer, or agent of the State, or to any contractor, grantee, or other recipient of government funds, subsequently discovers the falsity of claim, and fails to disclose claim to the government within a reasonable time after discovery. [Per Tenn. and other states; not in Fed. or Model] Knowingly make, use, or cause to be made or used any false or fraudulent conduct, representation or practice in order to procure anything of value directly or indirectly from government.

18 FALSE CLAIMS In Depth Important definitions [See, 31 U.S.C. 3729(b)]: Claim includes any request or demand for money, property or services made to any employee, officer or agent of the government, as well as its contractors, grantees or other recipient If the money or property is to be spent to further a government program or its interest; Where the government will reimburse that contractor, grantee or other recepient for any portion of the money, property or service

19 FALSE CLAIMS In Depth Important definitions cont d Knowing and Knowingly means that a person, with respect to information, does any of the following: Has actual knowledge of the information; Acts in deliberate ignorance of the truth or falsity of the information; or Acts in reckless disregard of the truth or falsity of the information Proof of specific intent is not required. A Person includes any natural person, corporations, partnerships, LLC, business, or trust

20 FALSE CLAIMS In Depth Statute of Limitations and Repose [See, 31 U.S.C. 3731(b)] may not be filed more than 6 years after date of the violation, may not be filed more than three (3) years after the date when facts material to right of action are known or should have been known by the government official charged with responsibility to act in the circumstances, or no more than ten (10) years after the date on which the prohibited violation was committed, whichever is later.

21 FALSE CLAIMS In Depth Legal protections [See, 31 U.S.C. 3730(h)] False Claims Acts often includes provisions to protect whistleblower/employees who are discharged, demoted, suspended, threatened, harassed, or otherwise discriminated against because of lawful acts by the employee in disclosing information. The act expressly makes the foregoing unlawful. Employee is entitled to all relief necessary to make him/her whole, including reinstatement, double back pay, interest on back pay, compensation for any special damages, and punitive damages. Employer required to pay costs and reasonable attorney fees.

22 FALSE CLAIMS In Depth Remedial Statute: Other Statutory Remedies Not Precluded Common law causes still exist even if civil action is time barred. You don t get to keep the government s property.

23 SUMMARY AG INITIATIVE: Four Focus Areas (1) Repeat Violators (2) Non-Owner/Operator Actions (3) False Statements (4) False Claims

24 George S. Bell, III, Senior Counsel Tennessee Attorney General s Office Office Phone: George.Bell@ag.tn.gov Karen H. Stachowski, Assistant Commissioner Tennessee Dept. of Environment & Conservation Office Phone: Karen.Stachowski@tn.gov