Suzanne Durrell on COVID-19 False Claims Act Cases

Last month, Taxpayers Against Fraud Education Fund launched a national COVID-19 Anti-Fraud Task Force to assist federal and state law enforcement in deterring, detecting, and exposing fraudulent business practices targeting government dollars.

Suzanne Durrell
Whistleblower Law Collaborative
Boston, Massachusetts

The COVID-19 Task Force will assist federal and state anti-fraud efforts to combat the array of fraud schemes arising from stimulus funds to combat the pandemic.

One of the attorneys who sits on the task force is Suzanne Durrell, a False Claims Act attorney with the Whistleblower Law Collaborative in Boston.

Durrell points out that while health care fraud has dominated the False Claims Act now for decades, COVID-19 health care fraud is poised to move to the forefront of the practice.

And Durrell would know. 

She was present at the creation of False Claims Act enforcement, having served in the Civil Division of the U.S. Attorney’s office of Boston from 1989 to 2002 when the office was building its reputation as the premiere False Claims Act office in the country. 

Since entering private practice in 2003, she has brought to settlement several very large False Claims Act health care fraud cases.

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the largest economic stimulus package in U.S. history.

“The CARES Act injected over $2 trillion of government funds into the economy and it could grow even larger,” Durrell told Corporate Crime Reporter in an interview last month. “The entire U.S. budget in 2019 was $4.45 trillion.” 

“In the race to find a cure, the government is engaging in a public/private partnership with industry. Our bar is concerned that we are going to need a vast public/private partnership as well with whistleblowers and attorneys to keep people honest to make sure the money isn’t wasted with fraud.” 

“We need speed and innovation and all hands on deck, but we don’t need cutting corners. We don’t need unclean hands. And we don’t need actions that could lead to patient harm if the right rules are not followed.” 

Is COVID-19 fraud the new health care fraud?

“My sense is that it will be. You will have both the COVID related health care fraud and you will have the health care fraud we are dealing with now. That won’t go away. But you will have emerging areas that will spring up.”

“For example, the emergency use authorizations for certain medications. The attention that is just being placed now on the strategic national stockpile. How is it stocked? How is it maintained? Are products defective? Clinical trial fraud. Vaccine manufacture. It’s a big area that’s coming and we need to be vigilant about it.”

You are on this task force looking at this. Is there any indication that whistleblowers are coming in the door already?

“There are indications whistleblowers are coming in the door, not only with the False Claims Act, but also at the SEC. They have seen a real uptick as well in fraud reports related to COVID-19.” 

Given the success of the False Claims Act, you would think it could be applied in all areas of corporate crime law enforcement. 

Why hasn’t it been?

“It’s a broad and elastic statute, which is one of the reasons I love it. It’s very adaptable to the circumstances. Having said that, it does have some limits. But over the years, whistleblowers and the whistleblower bar along with the government have taken what used to be considered novel theories and turned them into very established False Claims Act theories. This includes the Anti-Kickback Act statute, off label marketing of drugs in violation of the FDA rules, drug pricing, violating current good manufacturing practices set by the FDA –  these are all now False Claims Act violations. Recently we saw some bid rigging – bribery and collusion – declared False Claims Act violations.”

“We have a deep and talented whistleblower bar. And the government has very talented attorneys and investigators as well. People are always open to see novel and new areas in which we can apply the False Claims Act to corporate misdeeds.”

The False Claims Act framework, with a bounty for whistleblowers, has spread to the SEC, the CFTC, the IRS. There is also a similar whistleblower law in auto safety law now, although there has been only one settlement – in the Takata airbag case.

Why hasn’t it spread more?

“Motor vehicle safety is a good example. There are similar programs in the environmental area as well. As part of the savings and loan crisis back in 1989, the government passed the Financial Institution Reform Recovery and Enforcement Act. That law had a whistleblower provision. And many people at the time thought that would be the next big thing. But they capped the reward that was available. And as a result, we never saw much activity under the program.”

“But it could be expanded to antitrust or Foreign Corrupt Practices Act. It could definitely be applied in other areas. There might be institutional impediments to make that happen.”

In traditional corporate crime discussion, when you talk revolving door, you see young prosecutors jumping to these big corporate defense firms. In the False Claims Act, more and more you are seeing assistant U.S. Attorneys becoming plaintiffs side attorneys. How common is that?

“It is still more common for people to go into defense work or to go in house for the company, sometimes on the compliance side. But the number of attorneys who are deciding to join the whistleblower bar has really increased over the last few years.” 

“When I left the Justice Department in 2002, I was one of the very people who left the Justice Department and decided to work on the whistleblower cases. Most everyone went to the defense side. Now in the last few years, there are probably twenty or thirty people I know of that have gone from being an assistant U.S. Attorney or being at the Civil Division to being on the litigator’s side. It’s a welcome development.”

[For the complete q/a format interview with Suzanne Durrell, see 34 Corporate Crime Reporter 28(11), Monday July 13, 2020, print edition only.]

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