Overview of the State Statute. The Virginia Fraud Against Taxpayers Act (FATA) was enacted in 2003 to establish a cause of action for false claims for payment or reimbursement submitted to the Commonwealth of Virginia. The FATA provides that the Attorney General or a private citizen may prosecute cases under the Act in the name of the Commonwealth, and grants the Attorney General or his or her designee authority to issue Civil Investigative Demands (CIDs). See Va. Code Ann. §§ 8.01-216.1-216.19.
Comparison with FCA. The FATA is very similar to the federal False Claims Act, and was amended in 2011 to match changes to the FCA enacted by the Fraud Enforcement and Recovery Act of 2009. The Act was most recently amended in July 2012 with cosmetic changes to existing language. The FATA differs from the FCA in several minor respects. For example:
- Under the FATA, qui tam complaints remain sealed for 120 days, as opposed to 60 days under the FCA. See Va. Code Ann. § 8.01-216.5(B); 31 U.S.C. § 3730(b)(2).
- The FATA allows the Commonwealth to move for partial unsealing of a qui tam complaint to “facilitate the investigative process or settlement.” See Va. Code Ann. § 8.01-216.6(C). The FCA does not include such a provision.
- The FATA requires courts to dismiss relators who planned or initiated the violation that is the subject of the qui tam action, while the FCA merely provides that courts may reduce such relators’ shares of the award. Both states require dismissal of a relator who is convicted of criminal conduct arising from the violation. See Va. Code Ann. § 8.01-216.7(C); 31 U.S.C. § 3730(d)(3).
- The FATA expressly allows present or former Commonwealth employees to file qui tam actions based on information obtained during employment if the employee in good faith exhausted internal procedures for reporting and seeking recovery, and if the Commonwealth failed to act on the information within a reasonable time. See Va. Code Ann. § 8.01-216.8. Additionally, FATA states that the anti-retaliation provision constitutes a waiver of sovereign immunity and allows a government employee to bring an action against the Commonwealth if the Commonwealth is “the employer responsible for the adverse employment action.” Id.