Identification, Prevention, and Remedies for False Claims in Highway Improvement Contracting (2011)

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31 In contrast is the decision in United States v. Tech Refrigeration,219 where the court denied a motion for summary judgment based on an assertion that the claim was time barred. In Tech Refrigeration, the de- fendant, a former Amtrak employee, was charged with defrauding Amtrak out of thousands of dollars through an overbilling and kickback scheme. The court agreed with the Island Park decision that there may be cir- cumstances in which knowledge held by Government agencies other than the DOJ could trigger the running of the FCA statute of limitation. The court concluded that the facts of this case were not as clear-cut as those in Island Park. Based upon the record before it, the court found that it could not determine what the DOJ knew or should have known of the material facts, and denied the motion for summary judgment. The Ninth Circuit has ruled that the tolling provi- sion applies to qui tam plaintiffs.220 Not all circuits agree, however, and appellate precedents are not well settled as to whether the tolling provision applies to qui tam actions when the United States decides not to intervene.221 SECTION X. PUBLIC DISCLOSURE BAR A. Use of Information Obtained from Criminal, Administrative, Civil Hearing, etc. The FCA authorizes private qui tam relators to commence actions in the name of the Government, and retain a portion of the damages recovered, to mo- tivate private parties with knowledge of concealed fraud against the Government to come forward. Unless qualified, however, this could create a risk of parasitic actions. For example, a private party having no direct knowledge of a fraud might learn of its existence through news media coverage of an audit report or public testimony and then commence a qui tam action on that basis. In such a situation, the private party would contribute no direct knowledge and would not deserve any compensation for coming forward, but might nonetheless stand to gain an unmerited recovery. The FCA includes a provision known as the "public disclosure bar," 31 U.S.C. § 3730(e)(4)(A), enacted in 1986, which precludes parasitic actions.222 This provi- sion states that no court shall have jurisdiction over 219 143 F. Supp. 2d 1006, 1010 (N.D. Ill. 2001). 220 See, e.g., United States ex rel. Saaf v. Lehnman Bros., 123 F.3d 1307 (9th Cir. 1997); and United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc. et al., 474 F. Supp. 2d 75 (D.C. Cir. 2007). 221 See, e.g., United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc. et al., 474 F. Supp. 2d 75 (D.C. Cir. 2007); and see also United States ex rel. Fisher v. Network Software Assocs., Inc., 189 F. Supp. 2d 192 (D.C. Cir. 2002). 222 31 U.S.C. § 3730(e) was enacted by § 3 of the False Claims Amendments Act of 1986, Pub. L. No. 99-562, 100 Stat. 3153, and was subsequently amended in 1990 by Pub. L. No. 101-280 and in 1994 by Pub. L. No. 103-272. an action under the FCA which is "based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congres- sional, administrative or GAO report, hearing, audit or investigation, or from the news media."223 The legis- lative history of the 1986 enactment indicates clearly that the Senate Judiciary Committee was aware of and sought to address this issue.224 B. Original Source Exclusion The situation would be different where there had been media coverage of an audit report or a hearing, but the private party commencing the qui tam action was the original source who came forward with the information and led Government auditors or staff to uncover the fraud. In that situation, the private qui tam relator would deserve compensation for coming forward. Addressing this, 31 U.S.C. § 3730(e)(4)(A) cre- ates an exception from the public disclosure bar where the action is filed by the Government "or the person bringing the action is an original source of the infor- mation." As enacted, the statute defined "original source" as "an individual who has direct or independent knowledge of the information on which the allega- tions are based and has voluntarily provided the in- formation to the Government before filing an ac- tion…based on the information."225 The issue of whether a given qui tam relator is or is not an "original source" has been the subject of conflicting judicial interpreta- tions and litigation up to and including the U.S. Su- preme Court level.226 SECTION XI. QUI TAM PROVISIONS From the inception of the FCA in 1863, one of its most distinctive aspects has been the inclusion of provisions authorizing private parties as well as the 223 31 U.S.C. § 3730(e)(4)(A). Congress subsequently amended 31 U.S.C. § 3730(e)(4)(A) and (B), including revi- sions to the quoted language. Pub. L. No. 111-148 Tit. X, subtit. A § 10104j)(2), 124 stat. 901, 902 (Mar. 23, 2010). The U.S. Supreme Court ruled in a post-FERA case, Gra- ham County Soil and Water Conservation Dist. v. United States,_ U.S._, 130 S. Ct. 1396, 176 L. Ed. 2d 225, 78 U.S.L.W. 4214 (Mar. 30, 2010), that the public disclosure bar is triggered by state as well as federal disclosures. As amended by Pub. L. No. 111-148 at around the same time that case was decided, 31 U.S.C. § 3730(e)(4)(A) in the au- thor's opinion, now appears to limit dismissals to situations involving only federal, not state or local, disclosures. 224 S. REP. NO. 99-345 (July 28, 1986), cited and re- printed in Sylvia, supra note 7 (App. B-2); see Sylvia, supra note 7, at 59 n.30, and see more generally discussion at 53– 60 and App. B-1 of that book. 225 31 U.S.C. § 3730(e)(4)(B). 226 See, e.g., Rockwell Int’l Corp. v. United States, 549 U.S. 457, 127 S. Ct. 1397, 167 L. Ed. 2d 190 (2007), and other cases cited and analyzed in Sink & Pages, supra note 125, at 102–05; and SEYFARTH SHAW LLP, THE GOVERNMENT CONTRACT COMPLIANCE HANDBOOK (4th ed. 2006).

32 U.S. Attorney General (AG) to bring civil actions seeking recovery for false claims, both in their own names and in the name of the U.S. Government. As discussed below, these private actions are referred to as qui tam actions, and the private parties who bring them are referred to as qui tam relators. While FERA227 enacted significant amendments to the provisions of 31 U.S.C. § 3729 governing what a false claim consists of, as discussed in Section II of this di- gest, it retained the existing qui tam provisions of 31 U.S.C. § 3730 largely unchanged, with only some lim- ited revisions to the § 3730(h) provisions protecting whistleblowers from retaliation, along with some amendments to the 31 U.S.C. § 3731 provisions on U.S. Government intervention in private qui tam actions, 31 U.S.C. § 3732 jurisdictional provisions, and 31 U.S.C. § 3733 provisions on civil investigative demands in false claims litigation. Both our survey of state DOTs and our interviews with current and former government officials and private-sector experts indicated clearly that, for mul- tiple reasons, there is considerably less likelihood that private whistleblowers will pursue qui tam false claims actions in highway or bridge construction cases than has been the case in other sectors such as Medi- caid and pharmaceutical fraud. These issues will be discussed in Section XVII of this digest. For current purposes, suffice it to say that there are reasons why qui tam actions appear destined to play only a rela- tively limited role in future enforcement of the FCA for highway and bridge projects. Since statutory au- thorization for private qui tam actions continues to play an important role in the overall framework con- templated by the FCA, however, we now turn to con- sideration of how the Act provides for such actions. A. Qui Tam Actions Defined The FCA contemplates that its provisions shall be enforced by two general types of civil actions. One provision, 31 U.S.C. § 3730(a), authorizes the AG of the United States to investigate possible violations and to commence a civil action on behalf of the Government if he or she finds that a person has violated or is violat- ing 31 U.S.C. § 3729. Another provision, 31 U.S.C. § 3730(b)(1), also authorizes "a person" to bring a civil action for violation of 31U.S.C. § 3729, for the person and the U.S. Government, in the name of the Govern- ment. The "person" who is authorized to bring such a civil action in the name of the government is known as a qui tam relator. This is an abbreviation of the historical Latin phrase, used in English law, "qui tam pro domino rege quam prose ipso in hac parte sequitur," meaning someone "who sues on behalf of the King as well as him- 227 Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, 123 Stat. 1617, May 20, 2009 (FERA); text available online at http://www.gpo.gov/fdsys/pkg/PLA W-111 publ21/pdf/PLA W-111 publ2l.pdf (last accessed June 12, 2010). self."228 As one authority on the FCA has noted, the con- cept of private qui tam actions on behalf of the Gov- ernment has roots in English legal history going back to the 14th Century, roots in American legal history going as far back as 1692, and forerunners in a variety of state and federal statutes enacted between the Revolutionary War and the Civil War. This concept has been developed further over the course of enactment of the Act during the Civil War and its subsequent amendment.229 While the FCA does not define the word "person" as used in 31 U.S.C. § 3730(b)(1), the basic concept ap- pears to involve providing an inducement for individ- ual employees of a Government contractor with direct knowledge of a concealed fraud by the contractor to come forward with that knowledge, as a so-called "whis- tleblower." The statute does not limit the term "per- son" to contractors' employees, however, and individu- als who are not employees of the defendant, corporations, and even state governments have brought qui tam actions.230 B. Process and Procedure The FCA includes a variety of procedural require- ments for qui tam actions, as set forth in 31 U.S.C. §§ 3730(b) through (g), 3731, 3732, and 3733. They may be summarized briefly as follows. • The person filing the qui tam civil action must do so in the name of the U.S. Government.231 • A qui tam action may be filed in any federal dis- trict court in any district in which the defendant (or, if there are multiple defendants, any one defendant) resides, transacts business, or can be found, or where any act proscribed by 31 U.S.C. § 3729 occurred.232 • Federal courts shall have pendent jurisdiction over any state or local court actions arising from the same transaction or occurrence as a federal qui tam action.233 • Qui tam actions must be filed within 6 years after the violation is committed, or within 3 years after a federal official becomes aware of material facts but not more than 10 years after the violation is committed, whichever is later.234 228 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 160, and BLACK'S LAW DICTIONARY 1251 (6th ed.), as cited and quoted in Sylvia, supra note 7, at 34–35 nn. 1 and 2. 229 For an excellent discussion of the historical roots of qui tam actions and the False Claims Act, and the evolu- tion of the concept since enactment of the Act, see Sylvia, supra note 7, at 34–64. 230 Claire M. Sylvia, Qui Tam Actions Under the False Claims Act, included as ch. 5 in Sink & Pages, supra note 130, at 96, nn. 10–14. 231 31 U.S.C. § 3730(b)(l). 232 31 U.S.C. § 3732(a). 233 31 U.S.C. § 3732(b). 234 31 U.S.C. § 3731(b). The statute of limitations provi- sions of the FCA are discussed in § IX of this digest, supra.

33 • Once a relator has filed a qui tam action, the action cannot be dismissed without the consent of the U.S. Government and the court, regardless of whether the U.S. Government decides to intervene in the case.235 • The complaint must be filed secretly in camera with a federal court and kept under seal for at least 60 days to provide the U.S. Government with an opportu- nity to decide whether or not to intervene in the ac- tion. The qui tam relator must serve a copy on the Gov- ernment under Federal Rules of Civil Procedure (FRCP) Rule 4(d)(4); the Government then has 60 days to de- cide whether to intervene, and the Government can obtain extension of the 60-day period for good cause shown. If the Government decides to intervene, it con- ducts (i.e., takes over control of and litigates) the action; if not, the qui tam relator conducts the action.236 • If any state or local government is named as a co- plaintiff with the United States in any state or local court action governed by 31 U.S.C. § 3732(b), the 60-day seal imposed following the filing of a qui tam action and its service on the U.S. Government shall not pre- vent the relator and U.S. Government from serving the pleadings and sharing all material evidence with state and local law enforcement authorities involved in such state or local actions, but they too shall be gov- erned by the 60-day renewable seal imposed in con- nection with the federal qui tam action.237 This provision was added to the FCA by FERA, and was the subject of specific comment in its legislative history.238 • As between private parties, the first qui tam relator to file an action wins the race to the courthouse. Once a person has filed such an action, no person other than the Government may intervene or file a related ac- tion.239 • Under a provision enacted by FERA in 2009, if the U.S. Government chooses to intervene in a qui tam ac- tion, the Government may file its own complaint, or amend the complaint filed by the qui tam relator to clarify or add claims. For statute of limitations pur- poses, such new or amended complaint shall be consid- ered to relate back to the filing date of the initial qui tam action if it arises from the same conduct, transac- 235 Id. 236 31 U.S.C. § 3730(b)(2), (3), and (4). 237 31 U.S.C. § 3732(c). 238 Section 4(e) of the Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, 123 Stat. 1625, May 20, 2009 (FERA); text available online at http://www.gpo.gov/ fdsys/pkg/PLAW-111publ21/pdf/PLAW-111 publ21.pdf (last accessed June 12, 2010). See also CONG. REC. E1295– E1300, at E1300 (daily ed. June 3, 2009) (statement of Rep. Berman), available online via http://www.gpoaccess.gov/ crecord/advanced.html; on advanced search page, check boxes for "2009 CR, Vol. 155" and "Extension of Remarks," specific date on 06/03/2009, search E1295; on results page, click on the underlined letters “pdf” under hit no. 3, Fraud Enforcement and Recovery Act of 2009 (last accessed on June 12, 2010). 239 31 U.S.C. § 3730(b)(5). tions, or occurrences.240 The legislative history of FERA indicates that this provision was enacted to ad- dress potential issues raised by a Second Circuit ruling in 2006 that suggested that the Government might not be able to avail itself of retroactive amendment of a complaint under FRCP Rule 15(c)(2) in FCA litiga- tion.241 • If the U.S. Government files a false claims action or intervenes in a qui tam action, it shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evi- dence.242 • Notwithstanding any other provision of law, the defendant in a civil action under the FCA shall be estopped from denying the essential elements of any offense for which the defendant has been convicted at trial or to which the defendant has pled guilty or nolo contendere in any criminal proceeding charging fraud or false statements.243 • Subpoenas for witnesses in qui tam actions may be served at any place in the United States.244 C. Public Disclosure Ban To protect against parasitic actions, the FCA prohib- its the filing of qui tam actions "based upon the pub- lic disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congres- sional, administrative or GAO report, hearing, audit or investigation, or from the news media."245 This provi- sion is examined in Section X of this digest. 240 31 U.S.C. § 3731(c), as enacted by § 4(b) of the Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111- 21, 123 Stat. 1623, May 20, 2009 (FERA); text available online, see note 229, supra. 241 United States v. Baylor Univ. Medical Ctr., 469 F.3d 263 (2d Cir. 2006), cited and discussed in CONG. REC. E1295–E1300, at E1299 (daily ed. June 3, 2009) (state- ment of Rep. Berman); text of Rep. Berman's statement available online, see note 238, supra. 242 31 U.S.C. § 3731(d). 243 31 U.S.C. § 3731(e). 244 3I U.S.C. § 3731(a). 245 31 U.S.C. § 3730(e)(4)(A). As indicated above, Con- gress amended in 2010 31 U.S.C. § 3730(e)(4)(A) and (B), including significant revisions to the quoted language. 31 U.S.C. § 3730(e)(4) reads as follows: (4)(A) The court shall dismiss an action or claim under this section, unless opposed by the Government, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed— (i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party; (ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or (iii) from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. (B) For purposes of this paragraph, 'original source' means an individual who either (i) prior to a public disclosure under subsection (e)(4)(a), has voluntarily disclosed to the Govern- ment the information on which allegations or transactions in a claim are based, or (2) who has knowledge that is independ-

34 D. Respective Roles of Government and Relator When the Government elects to intervene in a qui tam action, the respective rights of the Government and the qui tam relator are governed by the FCA. The Government shall have primary responsibility for the action and shall not be bound by the decisions of the relator, but the relator may continue as a party.246 This would appear to mean that the relator can pur- sue discovery, file motions, and participate in the questioning of witnesses at trial, so long as that does not interfere with the Government's prosecution of the case. The Government may, however, move to limit the relator's participation if such participa- tion would interfere with or delay the Government's prosecution of the case and may dismiss or settle the action without the relator's consent so long as the court gives the relator a hearing first.247 The Govern- ment may also move to stay pretrial discovery by the relator if such discovery would interfere with the Government's investigation or prosecution of the case or any related criminal case; such stays, while granted for 60-day periods, shall be renewable.248 Notwithstanding the filing of or Government inter- vention in a qui tam action, the Government may also elect to resolve its claim through any alternate remedy available, including administrative means.249 For all of these reasons, it would appear highly advis- able for counsel for any relator to maintain a good working relationship with any federal attorneys handling Government intervention in a qui tam case. If the Government decides not to intervene, the re- lator shall have the right to conduct the qui tam ac- tion. In this situation, if the Government so requests, it has the right to be served with all pleadings, and (at Government expense) with copies of all deposition transcripts. The Government may, for good cause shown, be allowed to intervene at a later date, with- out limiting the relator's status or rights.250 Even if the Government decides not to intervene in or pro- ceed with a qui tam action and the relator proceeds alone, however, the Government may still move to ent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the infor- mation to the Government before filing an action under this section. Pub. L. No . 111-148, tit. X, subtit. A, § 10104(j)(2), 124 Stat. 901, 902, Mar. 23, 2010 (emphasis added). 246 31 U.S.C. § 3730(c)(l). 247 31 U.S.C. § 3730(c)(2). 248 31 U.S.C. § 3730(c)(4). 249 31 U.S.C. § 3730(c)(5). In this regard, note that as discussed in Section XII of this report, there are multiple federal statutes other than the FCA that offer the U.S. Government potential remedies for false claims or fraud involving federal contracts, including but not limited to a civil statute, 31 U.S.C. §§ 3801 et seq., which confers upon the Government authority to resolve false claims involving amounts of $150,000 or less administratively. 250 31 U.S.C. § 3730(c)(3). stay discovery by a relator if that would interfere with the Government's investigation or prosecution of a criminal or civil matter arising out of the same facts.251 E. Relator's Share of Proceeds In addressing what qui tam relators are entitled to recover if liability is established, the FCA draws some careful distinctions between different situa- tions. The basic provision, applicable to cases in which the Government intervenes and prevails in a qui tam action, is that the relator may be paid between 15 and 25 percent of the proceeds, depending upon the extent to which the relator substantially contributed to the prosecution of the action. If the action is one resulting primarily from disclosure of information by other persons in a hearing; in a congressional, administrative, or GAO report, audit, or investiga- tion; or in the news media, then the relator's share is limited to a maximum of 10 percent of the proceeds, and is to be set as the court considers appropriate, taking into account the significance of the information and role of the relator in advancing the case to litiga- tion. In addition to a share of the proceeds, relators are entitled to recover court costs plus reasonable at- torneys' fees and expenses.252 If the Government chooses not to intervene in an action, and the relator proceeds alone and prevails, then the relator is entitled to between 25 and 30 per- cent of the proceeds, as the court considers reason- able, plus court costs and reasonable attorneys' fees and expenses.253 Regardless of whether the Government intervenes or not, if the relator is convicted of any criminal violation for his role in the conduct involved, the rela- tor shall be dismissed from the civil action and shall not receive any portion of the proceeds. If the relator is not convicted, but the court finds that the relator planned and initiated the violation, then the court may to the extent considered appropriate reduce the relator's share of the proceeds, taking into account the relator's role in advancing the case to litigation and other relevant circumstances.254 The FCA also seeks to deter frivolous actions by pri- vate qui tam relators. If the Government decides not to intervene in a qui tam action, the relator proceeds alone, the defendant prevails, and the court finds that the relator's claim was clearly frivolous, vexatious, or brought primarily for purposes of harassment, the court may award the defendant reasonable attorneys' fees and expenses against the relator.255 251 31 U.S.C. § 3730(c)(4). 252 31 U.S.C. § 3730(d)(l). 253 31 U.S.C. § 3730(d)(2). 254 31 U.S.C. § 3730(d)(3). 255 31 U.S.C. § 3730(d)(4).

35 F. Government's Use of Civil Investigative Demands The FCA provides the Government with a custom- crafted tool to use in investigating a suspected false claim before deciding whether to initiate a false claims action or to intervene in a qui tam action: the CID for production of documentary material, written answers to interrogatories regarding such material, oral testimony concerning such material, or any com- bination of these.256 The statute's provisions for CIDs are lengthy and complex. In general terms, they ad- dress the issuance, service, contents, and deadlines of CIDs;257 protected material or information;258 service (including service outside the United States);259 service upon legal entities and natural persons;260 proof of service;261 documentary material;262 interrogatories;263 highly detailed procedures for oral examination;264 cus- todians of documents, answers, and transcripts;265 judicial proceedings to enforce, modify, or set aside CIDs or require performance by custodians;266 exemp- tion of CID materials from Freedom of Information disclosure;267 and a lengthy definitions provision.268 FERA amended the CID provision in several respects. The three most important changes are one that author- izes designees as well as the AG personally to issue CIDs; another that deletes a former requirement that the AG apply to a federal judge for court authoriza- tion before sharing CID information with any other investigative agency; and a third that adds a definition of the term "official use" that allows the DOJ consid- erable latitude in sharing CID information with other federal agencies, qui tam relators, witnesses, experts, counsel, and submissions to courts in connection with the investigation and litigation of false claims cases.269 The legislative history of the FERA amendments to the CID provisions indicates that, while provisions for CIDs were added by the 1986 amendments to the False Claims Act, CIDs were rarely used by the DOJ because 256 31 U.S.C. § 3733. 257 31 U.S.C. § 3733(a)(l) and (2). 258 31 U.S.C. § 3733(b). 259 31 U.S.C. § 3733(c). 260 31 U.S.C. § 3733(d). 261 31 U.S.C. § 3733(e). 262 31 U.S.C. § 3733(t). 263 31 U.S.C. § 3733(g). 264 31 U.S.C. § 3733(h). 265 31 U.S.C. § 3733(i). 266 31 U.S.C. § 3733(j). 267 31 U.S.C. § 3733(k). 268 31 U.S.C. § 3733(1). 269 Section 4(c) of the Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, 123 Stat. 1623, May 20, 2009 (FERA); text available online at http://www.gpo. gov/fdsys/pkg/PLAW-111publ21/pdf/PLAW-Illpubl2l.pdf (last accessed June 12, 201 0). the provisions concerning issuance and the sharing of CID information were too restrictive and ambiguous.270 G. Protection of Relator-Whistleblower Any qui tam action involves an evident risk that a contractor will retaliate against an employee who acts as a whistleblower to disclose false claims or fraudu- lent conduct by an employer and commences an action as a qui tam relator. The FCA includes a provision, aimed at protecting whistleblowers against retaliation, that any employee, contractor, or agent shall be enti- tled to all relief necessary to be made whole if dis- charged, demoted, suspended, threatened, harassed, or discriminated against in the terms and conditions of employment because of lawful acts done by the em- ployee or associated others in furtherance of efforts to stop violations of the Act.271 H. Retaliation and Suits To provide employees with an avenue for obtaining such relief, the FCA authorizes the filing of actions in federal courts. The Act specifies that the relief avail- able in such actions shall include reinstatement with the same seniority status the employee would have had but for the discrimination, two times the amount of back pay with interest, compensation for any special damages, and recovery of litigation costs and reasonable attorneys' fees.272 These provisions of the Act were amended by FERA.273 The legislative history of the FERA amend- ments indicates that they expanded the prior provi- sion to include acts by employees other than filing qui tam actions, to cover contractors and agents as well as employees, and to cover acts of retaliation against the family members and colleagues of whistleblowers.274 270 CONG. REC. El295–El300, at El299–El300 (daily ed. June 3, 2009) (statement of Rep. Berman); available online via http://www.gpoaccess.gov/crecord/advanced.html; on ad- vanced search page, check boxes for "2009 CR, Vol. 155" and "Extension of Remarks," specific date on 06/03/2009, search E1295; on results page, click on the underlined let- ters “pdf” under hit no. 3, Fraud Enforcement and Recovery Act of 2009 (last accessed on June 12, 201 0). 271 33 U.S.C. § 3730(h)(l). 272 33 U.S.C. § 3730(h)(2). 273 Section 4(d) of the Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, 123 Stat. 1624, May 20, 2009 (FERA); text available online at http://www.gpo.gov/fdsys/pkg/PLAW111publ21/pdf/ PLAW111publ21.pdf (last accessed June 12, 201 0). 274 CONG. REC. E1295–E1300, at E1300 (daily ed. June 3, 2009) (statement of Rep. Berman); available online via http://www.gpoaccess.gov/crecord/advanced.html; on ad- vanced search page, check boxes for "2009 CR, Vol. 155" and "Extension of Remarks," specific date on 06/03/2009, search El295; on results page, click on the underlined let- ters “pdf” under hit no. 3, Fraud Enforcement and Recov- ery Act of 2009 (last accessed on June 12, 2010).