Florida False Claims Act

By: Joel M. AndrophyiRachel L. Grier

Berg & Androphy has filed many qui tam lawsuits for the State of Florida and its citizens. The Florida False Claims Act (the “Florida FCA”) was enacted in 1994.1 The liability and damage provisions of the Florida FCA are identical to its federal counterpart, except for two key differences.2 First, the Florida FCA does not prohibit actions based on false tax returns.3Second, the Florida FCA includes an affirmative defense of “innocent mistake.”4 Pursuant to the Florida FCA, a defendant’s damages may be reduced from treble to double if the defendant demonstrates any of the three “voluntary disclosure” requirements rather than meeting all of the requirements as required by the FCA.5

The Department of Legal Affairs (“DLA”) may bring an action under the Florida FCA.6 If the DLA does not bring suit, the Department of Banking and Finance may bring an action based upon information arising from its investigation.7 An action brought pursuant to the Florida FCA must be filed in the Second Judicial Circuit Court of Leon County, Florida.8

Other procedural requirements, such as filing and disclosures, governmental intervention, responsibility for litigation of the suit, restrictions on relator participation, and relator’s recovery, closely model the requirements under the FCA.9 However, the Florida FCA does not require court approval for the voluntary dismissal of the action by the State over the objections of the relator.10The sealing period and stays of relator’s discovery are for sixty-day periods under both the Florida FCA and the federal FCA.11

Like its federal counterpart, the Florida FCA provides that private persons may bring an action.12 However, the Florida FCA bars actions brought by government employees, including attorneys for the state, current or former state employees who discovered the information through their employment with the state, or relators who received their information from state government employees.13

The Florida FCA statute of limitations is the same as the federal FCA. The Florida FCA provides that an action may be brought no more than sixyears after the violation occurred and no more than three years after material facts were or should have been known as long as this is no more than ten years after the violation occurred.14 The burden of proof is the same as that established in the FCA: a preponderance of the evidence.15

The Florida FCA contains similar jurisdictional bars as the FCA. It prohibits an individual from bringing suit against a member of the legislative, judicial, and executive branches of the State of Florida.16 The Florida FCA also contains a first to file bar and a bar against suits that are “based upon allegations or transactions that are the subject of a civil action or an administrative proceeding for a monetary penalty to which the state or political subdivision is already a party.”17 Furthermore, the Florida FCA contains a public disclosure bar similar to the FCA that includes “inspector general, or Auditor General, Comptroller, or Department of Banking and Finance report, hearing, audit, or investigation”18 The Florida FCA definition of “original source” is narrower than the one found in the federal FCA.19 The Florida FCA also bars actions if the defendant is a local government, such as a county or municipality.20

The Protections provided to whistleblowers under the Florida FCA are largely identical to those provided in Section 3730(h) of the FCA.21 The Florida FCA, however, only protects employees against retaliatory actions by the employer, while the FCA also protects contractors or agents.22 Unlike California and the District of Columbia, Florida did not expand these Protections.

The relator’s recovery under the Florida FCA is almost identical to that provided in the FCA.23 However, the Florida FCA provides that the injured agency may receive no more than its compensatory damages from the recovery with the remaining proceeds to be deposited in Florida’s General Revenue Fund.24 If the Department of Banking and Finance proceeded with the action, the remaining proceeds will be deposited in the Administrative Trust Fund of the Department of Financial Services. Unlike its federal counterpart, the Florida FCA also provides a mandatory award of reasonable attorneys’ fees and costs to all prevailing defendants if the court determines the suit is “clearly frivolous, clearly vexatious, or brought primarily for the purpose of harassment.”25 A prevailing defendant, however, cannot recover fees and costs from the State.26

 

  1. Fla. Stat. Ann. §§ 68.081-68.092.
  2. Fla. Stat. Ann. § 68.082(2).
  3. See Fla. Stat. Ann. § 68.082.
  4. Fla. Stat. Ann. § 68.082(1)(c). The Ninth Circuit stated in Wang v. FMC Corp. that innocent mistakes are not offenses under the FCA. 975 F.2d 1412, 1420 (9th Cir. 1992). The addition of an explicit affirmative defense of “innocent mistake” does not appear to add anything to the Florida FCA, other than shifting the burden of proof to the defendant to show mistake.
  5. Fla. Stat. Ann. § 68.082(3).
  6. Fla. Stat. Ann. § 68.083(1).
  7. Id.
  8. Fla. Stat. Ann. § 68.083(3).
  9. Fla. Stat. Ann. §§ 68.083(3), 68.084(1-2), and 68.085.
  10. Fla. Stat. Ann. § 68.084(2).
  11. Fla. Stat. Ann. § 68.084(4).
  12. Fla. Stat. Ann. § 68.083(2).
  13. Fla. Stat. Ann. § 68.087(4 & 5).
  14. Fla. Stat. Ann. § 68.089.
  15. Fla. Stat. Ann. § 68.090.
  16. Fla. Stat. Ann. § 68.087(1).
  17. Fla. Stat. Ann. §§ 68.087(2) and 68.083(7).
  18. Fla. Stat. Ann. § 68.087(3).
  19. Id. Under the Florida FCA, an “original source” must have direct and independent knowledge of the information and have voluntarily provided the information to the state before filing an action. Under the federal FCA, an “original source” is one who either voluntarily disclosed to the government the information on which the false claim is based, or has independent knowledge and provided information that materially adds to the publicly disclosed information.
  20. Fla. Stat. Ann. § 68.087(6).
  21. Fla. Stat. Ann. § 68.088.
  22. Compare Fla. Stat. Ann. § 68.088 to 18 U.S.C. § 3730(h).
  23. Fla. Stat. Ann. § 68.085. If the Government intervenes and proceeds with the action, the relator is entitled to between fifteen and twenty-five of the recovery. Fla. Stat. Ann. § 68.085(1). If the Government does not intervene, the relator is entitled to between twenty-five and thirty percent of the recovery. Fla. Stat. Ann. § 68.085(3). The share is limited to ten percent for those original sources who bring cases based on information already publicly disclosed where only an inconsequential amount of that information came from the relator. Fla. Stat. Ann. § 68.085(2). See also the discussion in § 13.02[2][c].
  24. Fla. Stat. Ann. § 68.085(4).
  25. Fla. Stat. Ann. § 68.086(3).
  26. Id.

iAuthor of treatise, Federal False Claims Act and Qui Tam Litigation, Law Journal Press (2010), research source of the issues discussed in this article.

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