On July 30, 2014, David W. Ogden, former Deputy Attorney General
of the United States and current partner with WilmerHale, urged
Congress to amend the False Claims Act while testifying before the U.S. House Judiciary
Committee's Subcommittee on the Constitution and Civil
Justice. "The False Claims Act has been a focus of
both my government service and my private practice over the last 15
years, and so I know from direct experience that its unique
provisions play a catalytic role in unearthing evidence of fraud
and recovering moneys lost to fraud, but also have harmful and
counterproductive effects."
Mr. Ogden invited Congress to consider a "sensible way forward
from here, one that aligns government and business alike to
prioritize preventing fraud before it diverts federal
dollars from their intended uses, truly making compliance rather
than litigation the first line of defense." Such a way
forward would entail "encouraging and incentivizing all
companies that work with the government to implement and maintain
state-of-the-art compliance programs that promote the highest
levels of corporate ethics and legal compliance, encourage and
protect internal whistleblowers, and voluntarily report any
violation promptly to government authorities."
Pursuant to this sensible way forward—outlined in Fixing the False Claims
Act—"certain rules would apply differently to
entities that have been independently certified as maintaining
state-of-art compliance programs, including the strongest
protections for whistleblowers, consistent with standards approved
by the government."
The reforms, developed based on the years of experience of Mr.
Ogden and his co-authors, and building on the research of his
fellow witness Dr. Patricia Harned of the Ethics Resource Center,
"are designed to incentivize individual employees to report
wrongdoing internally and companies to act quickly to identify and
halt wrongdoing and report it to the authorities. They are
also designed to make the potential consequences more proportionate
to the circumstances—including taking into account whether an
entity has programs in place to prevent fraud."
Based on his extensive experience, Mr. Ogden concluded that there
"is every reason to believe that the increased self-policing
and voluntary disclosures that these reforms would encourage will
lead to less fraud, less harm, and less need for
lawsuits."
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