75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1572
House Bill 2479
Sponsored by Representatives MAURER, RICHARDSON
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Authorizes civil action against person who submits false claim
paid directly or indirectly by state. Provides that action may be
brought by private qui tam plaintiff or Attorney General. Awards
treble damages, costs and disbursements and attorney fees.
Specifies amount of award to qui tam plaintiff based upon qui tam
plaintiff's contribution to prosecution and culpability.
A BILL FOR AN ACT
Relating to false claims.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 4 of this 2009 Act:
(1) 'Claim' means any request or demand for money, property or
services made to any employee, officer or agent of this state, or
to any contractor, grantee or other recipient, whether under
contract or not, if any portion of the money, property or
services requested or demanded issued from or was provided by the
state, or if the state will reimburse the contractor, grantee or
other recipient for any portion of the money or property that is
requested or demanded.
(2) 'Knowingly' means that a person, with respect to
information and regardless of specific intent to defraud:
(a) Has actual knowledge of the information;
(b) Acts in deliberate ignorance of the truth or falsity of the
information; or
(c) Acts in reckless disregard of the truth or falsity of the
information.
(3) 'Qui tam plaintiff' means a person who brings a civil
action under section 3 (2) of this 2009 Act. + }
SECTION 2. { + (1) Any person who commits any of the following
acts shall be liable to the state for three times the amount of
damages that the state sustains because of the act of that
person. A person shall also be liable to the state for the costs
of a civil action brought to recover any of those damages, and
shall be liable to the state for a civil penalty of not less than
$5,000 and not more than $10,000 for each violation, if the
person commits any of the following acts:
(a) Knowingly presents or causes to be presented a false claim.
(b) Knowingly makes, uses or causes to be made or used a false
record or statement to get a false claim paid or approved.
(c) Conspires to defraud the state by getting a false claim
allowed or paid, or conspires to defraud the state by knowingly
making, using or causing to be made or used a false record or
statement to conceal, avoid or decrease an obligation to pay or
transmit money or property to the state.
(d) Has possession, custody or control of public property or
money used or to be used by the state and knowingly delivers or
causes to be delivered less property than the amount for which
the person receives a certificate or receipt.
(e) Is authorized to make or deliver a document certifying
receipt of property used or to be used by the state and knowingly
makes or delivers a receipt falsely representing the property
received.
(f) Knowingly buys or receives as a pledge of an obligation or
debt, public property from any person who lawfully may not sell
or pledge the property.
(g) Knowingly makes, uses or causes to be made or used a false
record or statement to conceal, avoid or decrease an obligation
to pay or transmit money or property to the state.
(h) Is a beneficiary of an inadvertent submission of a false
claim, subsequently discovers the falsity of the claim and fails
to disclose the false claim to the state within a reasonable time
after discovery of the false claim.
(2) Notwithstanding subsection (1) of this section, a court may
assess not less than two times the amount of damages that the
state sustains because of the act of the person described in
subsection (1) of this section and no civil penalty if the court
finds all of the following:
(a) The person committing the violation furnished officials of
the state who are responsible for investigating false claim
violations with all information known to that person about the
violation no later than 30 days after the date on which the
person first obtained the information.
(b) The person fully cooperated with any investigation by the
state.
(c) At the time the person furnished the state with information
about the violation, no criminal prosecution, civil action or
administrative action had commenced with respect to the violation
and the person did not have actual knowledge of the existence of
an investigation into the violation.
(3) This section does not apply to claims, records or
statements made under the revenue and tax laws of this state. + }
SECTION 3. { + (1) The Attorney General shall investigate a
violation under section 2 of this 2009 Act. If the Attorney
General finds that a person has violated or is violating section
2 of this 2009 Act, the Attorney General may bring a civil action
under this section against that person.
(2)(a) A qui tam plaintiff may bring a civil action for a
violation of section 2 of this 2009 Act for the person and the
state in the name of the State of Oregon. The action may be
dismissed by the court only if the Attorney General gives written
consent to the dismissal and the reasons for consenting.
(b) A qui tam plaintiff shall serve the Attorney General with a
copy of the complaint and a written disclosure of substantially
all material evidence and information the qui tam plaintiff
possesses. The complaint shall be filed in camera, shall remain
under seal for at least 60 days and may not be served upon the
defendant until the court so orders. The Attorney General may
elect to intervene and proceed with the action within 60 days
after the Attorney General receives the complaint and the
material evidence and information.
(c) The Attorney General may, for good cause shown, move the
court for extensions of the time during which the complaint
remains under seal under paragraph (b) of this subsection. The
defendant may not be required to respond to any complaint filed
under this section until 20 days after the complaint is unsealed
and served upon the defendant as provided in ORCP 7.
(d) No later than 60 days after service or expiration of any
extensions obtained under paragraph (c) of this subsection, the
Attorney General shall:
(A) Proceed with the action; or
(B) Notify the court that the Attorney General declines to
proceed with the action, in which case the qui tam plaintiff may
proceed with the action.
(e) No person other than the Attorney General may intervene in
the action brought by the qui tam plaintiff or bring a separate
civil action based upon the facts underlying the pending action.
(3)(a) The Attorney General shall have primary responsibility
for prosecuting an action if the Attorney General proceeds with
the action and may not be bound by the qui tam plaintiff, subject
to paragraph (b) of this subsection.
(b) The Attorney General may move to dismiss the action and
shall serve the motion on the qui tam plaintiff. The qui tam
plaintiff shall be given the opportunity to respond and be heard
on the motion.
(c) The Attorney General may settle the action with the
defendant if the court determines, after a hearing, that the
proposed settlement is fair, adequate and reasonable under all
the circumstances. Upon a showing of good cause, the hearing may
be held in camera.
(d) Upon a showing by the Attorney General that unrestricted
participation during the course of the proceedings by the qui tam
plaintiff would interfere with or unduly delay the Attorney
General's litigation of the case, or would be repetitious,
irrelevant or for purposes of harassment, the court may impose
limitations on the qui tam plaintiff's participation as the court
deems necessary and appropriate.
(e) Upon a showing by the defendant that unrestricted
participation in the litigation by the qui tam plaintiff would be
for purposes of harassment or would impose an undue burden or
expense upon the defendant, the court may impose limitations on
the qui tam plaintiff's participation as the court deems
necessary and appropriate.
(4) If the Attorney General does not proceed with the action,
the qui tam plaintiff has the right to conduct the action, but
the Attorney General may be permitted to intervene upon a showing
of good cause. Upon request, the Attorney General shall be served
with copies of all pleadings and, at the Attorney General's
expense, shall be provided copies of all deposition transcripts.
(5) Upon a showing by the Attorney General that any type of
discovery by the qui tam plaintiff would interfere with an
investigation by the state or with a civil or criminal
prosecution by the Attorney General or a district attorney, the
court may stay such discovery for a period of not more than 60
days. The showing under this subsection shall be made in camera.
A court may extend the 60-day period upon a showing in camera
that the Attorney General or a district attorney has pursued a
criminal or civil investigation or proceeding with reasonable
diligence and that the challenged discovery in the civil action
will interfere with the criminal or civil investigation or
proceeding.
(6) The Attorney General may pursue any alternative remedy
provided by law to enforce section 2 of this 2009 Act including
any administrative proceeding to impose a civil penalty. If the
Attorney General pursues an alternative remedy, the qui tam
plaintiff shall have the same rights in the proceeding as the qui
tam plaintiff would have under an action under this section. A
final finding of fact or conclusion of law made in a proceeding
for an alternative remedy under this subsection shall be given
preclusive effect as to all parties to an action under this
section. A finding or conclusion is final if it has been finally
determined on appeal to the appropriate court, if the time for
filing an appeal with respect to the finding or conclusion has
expired or if the finding or conclusion is not subject to
judicial review.
(7)(a) Subject to paragraph (b) of this subsection, if the
Attorney General proceeds with the action brought by a qui tam
plaintiff, the qui tam plaintiff is entitled to at least 15
percent but not more than 25 percent of the damages and civil
penalty awarded in the action or the settlement of the claim,
based upon the contribution of the qui tam plaintiff to the
litigation of the claim.
(b) If the court finds that the judgment against the defendant
is based primarily on information other than information supplied
by the qui tam plaintiff, the court may award to the qui tam
plaintiff such sums as it deems appropriate but not more than 10
percent of the damages and civil penalty awarded by the court,
based upon the significance of the information provided by the
qui tam plaintiff and the role of the qui tam plaintiff in
advancing the case.
(c) Any amount awarded to the qui tam plaintiff under paragraph
(a) or (b) of this subsection shall be paid from the damages and
civil penalty awarded by the court. The court may also award
against the defendant the reasonable expenses and disbursements
and attorney fees of the qui tam plaintiff. The state is not
liable for expenses, disbursements or attorney fees of the qui
tam plaintiff in bringing the action.
(8) If the Attorney General does not proceed with the action
brought by a qui tam plaintiff, the court shall award to a
prevailing qui tam plaintiff an amount no less than 25 percent
and no greater than 30 percent of the damages and civil penalty
awarded by the court or of the amount of the settlement. The
court may also award costs and disbursements and attorney fees of
the qui tam plaintiff against the defendant.
(9) If the court finds that the qui tam plaintiff planned or
participated in the violation of section 2 of this 2009 Act, the
court may reduce the share of the damages and civil penalty that
the qui tam plaintiff would otherwise receive under subsection
(7) or (8) of this section, taking into account the role of the
qui tam plaintiff in advancing the case and any relevant
circumstances pertaining to the violation. If the qui tam
plaintiff is convicted of criminal conduct arising from the qui
tam plaintiff's role in the violation of section 2 of this 2009
Act, the court shall dismiss the qui tam plaintiff from the
action and the qui tam plaintiff may not receive any share of the
damages or civil penalty and may not be awarded costs and
disbursements or attorney fees. A dismissal of the qui tam
plaintiff under this subsection does not prejudice the right of
the Attorney General to continue the prosecution of the action.
(10) If the defendant prevails in the action, the court may
award the defendant costs and disbursements and reasonable
attorney fees against the qui tam plaintiff, but not against the
Attorney General, if the court finds the claim of the qui tam
plaintiff was frivolous, vexatious or brought primarily for
purposes of harassment.
(11) The remedies available under this section are in addition
to and not in lieu of any remedies available under ORS 165.696
and 411.690. + }
SECTION 4. { + (1) A civil action under section 3 of this 2009
Act shall be brought in the circuit court of the county in which
the defendant resides or transacts business or in which the
violation of section 2 of this 2009 Act occurred within the later
of:
(a) Six years from the date on which the violation of section 2
of this 2009 Act is committed; or
(b) Three years from the date when the Attorney General knows
or reasonably should know the material facts, but in no event
more than 10 years after the date the violation was committed.
(2) In any action brought under section 3 of this 2009 Act, the
Attorney General or the qui tam plaintiff shall be required to
prove all essential elements of the cause of action, including
damages, by a preponderance of the evidence.
(3) A judgment entered in favor of the Attorney General in a
criminal proceeding charging false or fraudulent statements shall
be binding in any proceeding brought under section 3 of this 2009
Act. + }
SECTION 5. { + (1) No action may be brought under section 3 of
this 2009 Act:
(a) Against a member of the Legislative Assembly, the judiciary
or a senior executive branch official if the action is based on
information known to the state when the action is brought; or
(b) That is based on allegations that are the subject of a
civil action or administrative proceeding in which the state is a
party.
(2) Any employee who is discharged, demoted, suspended,
threatened, harassed or in any other manner harmed in the
employee's terms or conditions of employment by an employer or an
agent of an employer because of lawful acts done by the employee
in furtherance of an action under section 3 of this 2009 Act may
bring an action for compensation against the employer. The relief
available in an action under this subsection shall include
reinstatement at the level of seniority prior to the retaliatory
action, double the amount of back pay to which the employee is
entitled, compensation for emotional and mental distress,
attorney fees and costs and disbursements incurred by the
employee in the litigation of the matter. + }
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