News

This is the fifth entry in a six-part series on the process and practical realities of being a whistleblower and exposing fraud against the government.  

This is the fourth entry in a six-part series on the process and practical realities of being a whistleblower and exposing fraud against the government.  

This is the third entry in a six-part series on the process and practical realities of being a whistleblower and exposing fraud against the government.  

This is the second entry in a six-part series on the process and practical realities of being a whistleblower and exposing fraud against the government.  

This is the first entry in a six-part series on the process and practical realities of being a whistleblower and exposing fraud against the government.

Kickback schemes are among the most prevalent types of fraud in the federal healthcare system. However, compared to other types of fraud, the harm done by such schemes is not always as intuitive.  

Earlier this month, the Department of Justice formally intervened in a significant qui tam action against some of the largest health insurers in America—Aetna, Elevance (previously known as Anthem), and Humana. In a more than 200-page complaint, the Government alleges these insurance companies paid hundreds of millions of dollars in kickbacks to insurance brokers to steer patients into their Medicare Advantage plans. The brokers—companies eHealth, SelectQuote, and GoHealth—are also named defendants in the action (See DOJ press release here).

One unique feature of False Claims Act (FCA) litigation is the fact that the whistleblower files suit in both his or her own name and also on behalf of the United States of America, and then serves the civil complaint on the Justice Department rather than the named defendant. This marrying of private knowledge and government investigative resources has recovered billions of dollars for taxpayers. But the relationship between a private whistleblower and her counsel, on the one hand, and the government, on the other, can sometimes become strained.

When whistleblowers look to file suit for fraud against the government, the oldest and most common tool is the federal False Claims Act (FCA). This statute allows whistleblowers to file suit in the name of the United States and gives the Department of Justice (DOJ) an opportunity to investigate—sometimes for years at a time—while the case remains under seal and before the defendant is aware that the case has been filed. While the federal FCA is a powerful tool in fighting fraud and recovering taxpayer funds, one meaningful limitation is that it only applies to federal funds. The FCA cannot be used to recover funds for state or local government programs, or from private parties.

On March 31, 2025, a federal court in New Jersey entered a $1.64 billion False Claims Act judgment against Janssen Products, a subsidiary of Johnson & Johnson. The whistleblowers—two sales representatives who had worked for the company—alleged that Janssen had illegally marketed two HIV medications (Prezista and Intelence) off-label.