Topic:
CIVIL PROCEDURE; LITIGATION; WHISTLEBLOWING;
Location:
LITIGATION;

OLR Research Report


March 11, 2008

 

2008-R-0176

FRIVOLOUS CLAIMS UNDER MASSACHUSETTS' FALSE CLAIMS ACT

By: Kristin Sullivan, Associate Analyst

You asked (1) for a brief summary of Massachusetts false claims act, (2) how it treats frivolous claims, and (2) for a comparison of the Massachusetts law and similar bills raised by Connecticut's Government Administration and Elections (GAE) Committee with respect to frivolous claims.

SUMMARY

Massachusetts, like many states, modeled its false claims act after the federal False Claims Act of 1986. The act generally imposes a civil liability on any person or entity that submits a false or fraudulent claim for payment to the state or one of its political subdivisions. It covers fraud involving any government contract or program, except tax fraud.

The act allows the government to bring civil actions to recover damages and civil penalties when false claims are made. It also provides for qui tam suits, which are suits brought by private informants in the name of the government charging fraud on the part of people who improperly receive or use government funds. People who file qui tam lawsuits (known as “relators” in the act and “whistleblowers” by lay people) are often employees or former employees of agencies or companies that commit fraud and they often share in the damages recovered as a result of the suit.

Massachusetts' false claims act and recent bills raised by the GAE Committee, such as the latest (2007's SB 1428, An Act Concerning Fraud Against the State), offer protections against frivolous claims to respondents in false claims lawsuits that are substantively similar to those found in the federal law. “Frivolous claims” are generally considered to be those brought by a whistleblower that are unfounded, untrue, or meant to harass the respondent. False claims act critics maintain that whistleblower rewards encourage frivolous claims and that the law may be easily abused.

Most false claims acts, including Massachusetts' law and SB 1428, include a standard safeguard against frivolous claims in qui tam actions. This provision authorizes the court to award fees and expenses to a respondent who prevails when the person bringing the lawsuit makes a claim that is clearly frivolous or brought for the purposes of harassment. However, courts cannot award attorney fees or costs in cases brought unsuccessfully by the government.

Table 1 compares the safeguard provisions in Massachusetts and Connecticut, which are substantively similar to each other and the federal law's safeguard provision. The table thus includes the federal provision as a point of reference.

TABLE 1: PROTECTION AGAINST FRIVOLOUS CLAIMS

Summary of Safeguard Provision

Massachusetts

M.G.L. 12 5I(2)

If the attorney general does not proceed with an action and the respondent is the prevailing party, the court may award the respondent reasonable attorneys' fees and costs against the whistleblower upon a written finding that the action was pursued in bad faith or was wholly insubstantial, frivolous, and advanced to cause the respondent undue burden, unnecessary expense, or harassment.

Connecticut

SB 1428, 2007

6(c)

If a respondent prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, vexatious, or brought primarily for purposes of harassment, the court may award reasonable attorneys' fees and expenses to the respondent.

Federal

31 U.S.C. 3730 (d)(4)

If the Government does not proceed with the action and the person bringing the action conducts the action, the court may award to the respondent its reasonable attorneys' fees and expenses if the respondent prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.

KS:ts