New Jersey State False Claims Act

§ 2A:32C-1. Short title [Effective March 13, 2008]

Sections 1 through 15 and sections 17 and 18 [C.2A:32C-1 through C.2A:32C-17] of this act shall be known and may be cited as the “New Jersey False Claims Act.”

§ 2A:32C-2. Definitions relative to false claims [Effective March 13, 2008]

As used in this act:

“Attorney General” means the Attorney General of the State of New Jersey, or his designee. “Claim” means a request or demand, under a contract or otherwise, for money, property, or

services that is made to any employee, officer, or agent of the State, or to any contractor, grantee, or other recipient if the State provides any portion of the money, property, or services

requested or demanded, or if the State will reimburse the contractor, grantee, or other recipient

for any portion of the money, property, or services requested or demanded. The term does not include claims, records, or statements made in connection with State tax laws.

“Knowing” or “knowingly” means, with respect to information, that a person: (1) has actual knowledge of the information; or

(2) acts in deliberate ignorance of the truth or falsity of the information; or

(3) acts in reckless disregard of the truth or falsity of the information.

No proof of specific intent to defraud is required. Acts occurring by innocent mistake or as a result of mere negligence shall be a defense to an action under this act.

“State” means any of the principal departments in the Executive Branch of State government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; and any independent State authority, commission, instrumentality or agency.

§ 2A:32C-3. Civil liability for false, fraudulent claim [Effective March 13, 2008]

A person shall be jointly and severally liable to the State for a civil penalty of not less than and not more than the civil penalty allowed under the federal False Claims Act (31 U.S.C. § 3729 et seq.), as may be adjusted in accordance with the inflation adjustment procedures prescribed in the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub.L.101-410, for each false or fraudulent claim, plus three times the amount of damages which the State sustains, if the person commits any of the following acts:

a. Knowingly presents or causes to be presented to an employee, officer or agent of the State,  or  to  any  contractor,  grantee,  or  other  recipient  of  State  funds,  a  false  or fraudulent claim for payment or approval.

b. Knowingly makes, uses, or causes to be made or used a false record or statement to get a false or fraudulent claim paid or approved by the State;

c. Conspires to defraud the State by getting a false or fraudulent claim allowed or paid by 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, intending to defraud the entity, makes or delivers a receipt without completely knowing that the information on the receipt is true

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; or

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.

§ 2A:32C-4. Reduction of treble damages by court, conditions [Effective March 13, 2008]

The court may reduce the treble damages authorized under section 3 [C.2A:32C-3] of this act to not less than twice the amount of damages which the State sustains if the court finds all of the following:

a. The person committing the violation furnished officials of the State responsible for investigating false claims violations with all information known to such person about the violation within 30 days after the date on which the person first obtained the information;

b. The person fully cooperated with any government investigation of the violation; and

c. At the time such person furnished the State with information about the violation, no criminal prosecution, civil action, or administrative action had commenced with respect to such violation, and the person did not have actual knowledge of the existence of an investigation into such violation.

§ 2A:32C-5. Investigation of violation; prosecution of actions [Effective March 13, 2008]

a. The Attorney General shall investigate a violation of this act. If the Attorney General finds that a person has violated or is violating this act, the Attorney General may bring a civil action in State or federal court against the person. The Superior Court shall have jurisdiction over a State action brought pursuant to this act.

b. A person may bring a civil action for a violation of this act for the person and for the State. Civil actions instituted under this act shall be brought in the name of the State of New Jersey.

c. A complaint filed by a person under this act shall remain under seal for at least 60 days and shall not be served on the defendant until the court so orders. Once filed, the action may be voluntarily dismissed by the person bringing the action if the Attorney General gives written consent to the dismissal along with the reason for consenting, and the court approves the dismissal.

d. A complaint alleging a false claim filed under this act shall be so designated when filed, in accordance with the Rules Governing the Courts of the State of New Jersey. Immediately upon filing of the complaint, the plaintiff shall serve by registered mail, return receipt requested, the Attorney General with a copy of the complaint and written disclosure of substantially all material evidence and information the person possesses. The Attorney General may elect to intervene and proceed with the action on behalf of the State within 60 days after it receives both the complaint and the material evidence and information.

e. If a person brings an action under this act and the action is based upon the facts underlying a pending investigation by the Attorney General, the Attorney General may take over the action on behalf of the State. In order to take over the action, the Attorney General shall give the person written notification within 30 days after notice of the action is  served  on  the  Attorney  General  that  the  Attorney  General  is  conducting  an investigation of the facts of the action and will take over the action.

f. The Attorney General may, for good cause shown, request that the court extend the time during which the complaint remains under seal. Any such motion may be supported by affidavits or other submissions in camera.

g.  Before  the  expiration  of  the  60-day  period  or  any  extensions  obtained  under subsection f., the Attorney General shall:

(1) file a pleading with the court that he intends to proceed with the action, in which case the action is conducted by the Attorney General and the seal shall be lifted; or

(2) file a pleading with the court that he declines to proceed with the action, in which case the seal shall be lifted and the person bringing the action shall have the right to conduct the action.

h. The defendant’s answer to any complaint filed under this act shall be filed in accordance with the Rules Governing the Courts of the State of New Jersey after the complaint is unsealed and served upon the defendant.

i. When a person files an action under this act, no other person except the State may intervene or bring a related action based on the facts underlying the pending action.

§ 2A:32C-6. Primary responsibility for prosecuting action; remedies, supplementary [Effective March 13, 2008]

a. If the Attorney General proceeds with the action, the Attorney General shall have primary

responsibility for prosecuting the action, and shall not be bound by any act of the person bringing the action. The person bringing the action has the right to continue as a party to the action, subject to limitations specified in this act. The person bringing the action has an ongoing duty to disclose information related to the action to the Attorney General.

b. The Attorney General may move to dismiss the action for good cause shown, notwithstanding the objections of the person bringing the action, provided that the person bringing the action has been notified by the Attorney General and the court has provided the person bringing the action with the opportunity for a hearing.

c. Nothing in this act shall be construed to limit the authority of the Attorney General or the person bringing the action to settle the action, 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  litigation  by  the  person  initiating  the  action  would  interfere  with  or  unduly  delay  the Attorney General’s prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person’s participation, including, but not limited to:

(1) Limiting the number of witnesses the person may call;

(2) Limiting the length of the testimony of the person’s witnesses; (3) Limiting the person’s cross-examination of witnesses; or

(4) Otherwise limiting the participation by the person in the litigation.

e. Upon a showing by the defendant that unrestricted participation during the course of the

litigation by the person initiating the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.

f. If the Attorney General decides not to proceed with the action, the seal shall be lifted and the person who initiated the action shall have the right to conduct the action. The decision of the Attorney General on whether to proceed with an action shall be deemed final and shall not be subject to review by any court or agency. If the Attorney General so requests, the Attorney General shall be served at the expense of the Attorney General with copies of all pleadings and motions filed in the action and copies of all deposition transcripts. When a person proceeds with the action, the court, without limiting the rights of the person initiating the action, may permit the Attorney General to intervene and take over the action on behalf of the State at a later date upon a showing of good cause. over the action on behalf of the State at a later date upon a showing of good cause.

g. Whether or not the Attorney General proceeds with the action, upon a showing by the Attorney General that certain actions of discovery by the person initiating the action would interfere with an investigation by the State or the prosecution of a criminal or civil matter arising out of the same facts, the court may stay such discovery for a period of not more than 60 days. Such a showing shall be conducted in camera. The court may extend the 60-day period upon a further showing in camera by the Attorney General that the criminal or civil investigation or proceeding has been pursued with reasonable diligence and any proposed discovery in the civil action will interfere with an ongoing criminal or civil investigation or proceeding.

h. The application of one civil remedy under this act shall not preclude the application of any other remedy, civil, administrative or criminal, under this act or any other provision of law. Civil and administrative remedies under this act are supplemental, not mutually exclusive. If after the filing of a complaint under section 5 [C.2A:32C-5] of this act, the Attorney General decides to pursue an alternate administrative recovery action under subsection (e) of section 17 of P.L.1968, c.413 (C.30:4D-17), the plaintiff shall have the same rights in the administrative recovery action as the plaintiff would have had if the action had continued in Superior Court. Any finding of fact or conclusion of law made in the proceeding under subsection (e) of section 17 of P.L.1968, c.413 (C.30:4D-17) that has become final shall be conclusive on all parties to an action initiated under section 5 of this act. As used in this subsection, the term “final” means that the finding of fact or conclusion of law has been finally determined on appeal  to  the  appropriate  court,  all  time  for  filing  such  an  appeal  with  respect  to  the  finding  or conclusion has expired, or the finding or conclusion is not subject to judicial review.

§ 2A:32C-7. Distribution of proceeds [Effective March 13, 2008]

a. If the Attorney General proceeds with and prevails in an action brought by a person under this act, except as provided in subsection b., the court shall order the distribution to the person of at least

15% but not more than 25% of the proceeds recovered under any judgment obtained by the Attorney General under this act or of the proceeds of any settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action.

b. If the Attorney General proceeds with an action which the court finds to be based primarily on disclosures of specific information, other than that provided by the person bringing the action, relating to allegations or transactions in a criminal, civil, or administrative hearing; a legislative, administrative, or inspector general report, hearing, audit, or investigation; or from the news media, the court may award such sums as it considers appropriate, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation.

c. The Attorney General shall receive a fixed 10% of the proceeds in any action or settlement of the claim that it brings, which shall be deposited in the “False Claims Prosecution Fund” established in section 13 [C.2A:32C-13] of this act and shall only be used to support its ongoing investigation and prosecution of false claims pursuant to the provisions of this act.

d. If the Attorney General does not proceed with an action under this section, the person bringing the action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than 25% and not more than

30% of the proceeds of the action or settlement of a claim under this act.

e. Following any distributions under subsection a., b., c. or d. of this section the State entity injured by the submission of a false claim shall be awarded an amount not to exceed its compensatory damages. Any remaining proceeds, including civil penalties awarded under this act, shall be deposited in the General Fund.

f. Any payment under this section to the person bringing the action shall be paid only out of the proceeds recovered from the defendant.

g. Whether or not the Attorney General proceeds with the action, if the court finds that the action was brought by a person who knowingly planned and initiated the violation of this act upon which the action was brought, the court may, to the extent the court considers appropriate, reduce the share of the proceeds of the action which the person would otherwise receive under this section, taking into account the role of the person in advancing the case to litigation and any relevant circumstances pertaining to the violation. If the person bringing the action is convicted of criminal conduct arising from his role in the violation of this act the person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. Such dismissal shall not prejudice the right of the Attorney General to continue the action.

§ 2A:32C-8. Awarding of attorney’s fees, expenses and costs [Effective June 25, 2009]

a. If the Attorney General initiates an action under this act or assumes control of an action brought by a person under this act, the Attorney General shall be awarded reasonable attorney’s fees, expenses, and costs. All such expenses, fees, and costs shall be awarded against the defendant.

b. If the court awards proceeds to the person bringing the action under this act, the person shall also be awarded an amount for reasonable attorney’s fees, expenses, and costs. All such expenses, fees, and costs shall be awarded against the defendant.

c. If the Attorney General does not proceed with an action under this act and the defendant is the prevailing party, the court may award the defendant reasonable attorney’s fees, expenses, and costs against the person bringing the action if the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.

d. No liability shall be incurred by the State or the Attorney General for any expenses, attorney’s fees, or other costs incurred by any person in bringing or defending an action under this act.

(cf: P.L.2007, c.265, s.8)

§ 2A:32C-9. Immunity from civil liability; limitations on bringing an action [Effective June 25, 2009]

§ 2A:32C-10. Disclosure of information by employee, employee protections [Effective March 13, 2008]

a. No employer shall make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a State or law enforcement agency or from acting to further a false claims action, including investigating, initiating, testifying, or assisting in an action filed or to be filed under this act.

b. No employer shall discharge, demote, suspend, threaten, harass, deny promotion to, or in any other manner discriminate against an employee in the terms and conditions of employment because of lawful acts done by the employee on behalf of the employee or others in disclosing information to a State or law enforcement agency or in furthering a false claims action, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this act.

c. An employer who violates subsection b. of this section shall be liable for all relief necessary to make the employee whole, including reinstatement with the same seniority status such employee would have had but for the discrimination, two times the amount of back pay, interest on the back pay, compensation  for  any  special  damage  sustained  as  a  result  of  the  discrimination,  and,  where appropriate, punitive damages. In addition, the defendant shall be required to pay litigation costs and reasonable attorneys’ fees associated with an action brought under this section. An employee may bring an action in the Superior Court for the relief provided in this subsection.

d. An employee who is discharged, demoted, suspended, harassed, denied promotion, or in any other  manner  discriminated  against  in  the  terms  and  conditions  of  employment  by  his  employer because of participation in conduct which directly or indirectly resulted in a false claim being submitted to the State shall be entitled to the remedies under subsection c. of this section if, and only if, both of the following occurred:

(1)  The  employee  voluntarily  disclosed  information  to  a  State  or  law  enforcement agency or acts in furtherance of a false claims action, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed.

(2) The employee had been harassed, threatened with termination or demotion, or otherwise coerced by the employer or its management into engaging in the fraudulent activity in the first place.

§ 2A:32C-11. Statute of limitations for bringing civil action [Effective March 13, 2008] A civil action under this act may not be brought:

a. More than six years after the date on which the violation of the act is committed; or

b. More than three years after the date when facts material to the right of action are known or reasonably should have been known by the State official charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.

§ 2A:32C-12. Evidence required for action, preponderance [Effective March 13, 2008]

In any action brought under this act, the State or the person bringing the action shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.

§ 2A:32C-13. “False Claims Prosecution Fund.” [Effective March 13, 2008]

a. There is established in the General Fund the “False Claims Prosecution Fund” as a nonlapsing revolving fund in the Department of the Treasury. Monies deposited in the fund shall be utilized by the Attorney General for the exclusive purpose of investigating and prosecuting false claims. The State Treasurer shall deposit 10% of the proceeds recovered by the Attorney General pursuant to subsection c. of section 7 of P.L.2007, c.265 (C.2A:32C-7) in the False Claims Prosecution Fund.

b. The State Treasurer shall deposit 25% of the State share of monies recovered from actions related to false or fraudulent Medicaid claims brought pursuant to this act in the “Medicaid Fraud Control Fund” established by section 10 of P.L.2007, c.58 (C.30:4D-62).

c.  Except  as  provided  in  subsections  a.  and  b.  of  this  section,  the  State  share  of  moneys recovered by the Attorney General in accordance with the provisions of this act shall be deposited in the General Fund.

§ 2A:32C-14. Issuance of subpoenas, warrant for arrest; other power of Attorney General [Effective March 13, 2008]

a. If the Attorney General has reason to believe that a person has engaged in, or is engaging in, an act or practice which violates this act, or any other relevant statute or regulation, the Attorney General or the Attorney General’s designee may administer oaths and affirmations, and request or compel the attendance of witnesses or the production of documents. The Attorney General may issue, or designate another to issue, subpoenas to compel the attendance of witnesses and the production of books, records, accounts, papers and documents. Witnesses shall be entitled to receive the same fees and mileage as persons summoned to testify in the courts of the State. If a person subpoenaed pursuant to this section shall neglect or refuse to obey the command of the subpoena, a judge of the Superior Court may, on proof by affidavit of service of the subpoena, of payment or tender of the fees required and of refusal or neglect by the person to obey the command of the subpoena, issue a warrant for the arrest of said person to bring that person before the judge, who is authorized to proceed against the person as for a contempt of court.

b. If the matter that the Attorney General seeks to obtain by request is located outside the State, the person so required may make it available to the Attorney General or the Attorney General’s representative to examine the matter at the place where it is located. The Attorney General may designate representatives, including officials of the state in which the matter is located, to inspect the matter on behalf of the Attorney General, and the Attorney General may respond to similar requests from officials of other states.

c. If a licensed professional or an owner, administrator or employee of a licensed professional, including  but  not  limited  to  an  owner,  administrator  or  employee  of  any  hospital,  an  insurance company, an insurance producer, solicitor or adjuster, or any other person licensed or certified by a licensing authority of this State, or an agent, representative or employee of any of them is found to have violated  any  provision  of  this  section,  the  Attorney  General  shall  notify  the  appropriate  licensing authority of the violation so that the licensing authority may take appropriate administrative action.

d. State investigators shall not be subject to subpoena in civil actions by any court of this State to testify concerning any matter of which they have knowledge pursuant to a pending false claims investigation by the State, or a pending claim for civil penalties initiated by the State.

§ 2A:32C-15. Sovereign immunity preserved [Effective March 13, 2008]

This act [C.2A:32C-1] shall not be construed as waiving the sovereign immunity of the State and its officers and employees as otherwise provided by law.

§ 2A:32C-16. Existing law, certain, unaffected [Effective March 13, 2008]