What is the Massachusetts Whistleblower Law (Massachusetts False Claims Act)?
The Massachusetts whistleblower law, the Massachusetts False Claims Act, allows whistleblowers to file “qui tam” lawsuits if they know of violations of that state law.
The Massachusetts False Claims Act is a law that imposes liability on persons who knowingly present fraudulent or false claims for payment to the state, misappropriate state property, or conceal or avoid obligations to pay the state, among other violations. It also includes a provision making a beneficiary of an inadvertent submission of a false claim or overpayment liable if they discover the false claim and fail to disclose it within certain timeframes.
Penalties under the Massachusetts Whistleblower Law
A defendant may be ordered to pay up to three times the actual harm to the state, plus civil fines for each violation of the Act.
Rewards under the Massachusetts Whistleblower Law
A whistleblower filing a Massachusetts False Claims Act case may receive between 15 and 25 percent of the recovery if the Massachusetts Attorney General intervenes and prosecutes the matter. If the whistleblower prosecutes the case without the intervention of the Massachusetts Attorney General, the whistleblower may receive between 25 and 30 percent of the recovery. The court may reduce the amount of the award if the whistleblower planned and initiated the fraud or if the action is largely based on information disclosed in the media or public hearings.
Protection from Retaliation under the Massachusetts Whistleblower Law
The Massachusetts False Claims Act protects whistleblowers who suffer employment retaliation because of their whistleblowing. Protection under the Massachusetts whistleblower law includes:
- Reinstatement with the same seniority status that the whistleblower would have had but for the retaliation
- Two times the amount of back pay
- Interest on the back pay
- Compensation for any special damages sustained as a result of the retaliation
In successful whistleblower retaliation cases, the defendant is also required to pay litigation costs and reasonable attorneys’ fees.
Time Limits (Statute of Limitations) under the Massachusetts Whistleblower Law
Whistleblowers must generally file a qui tam complaint within six years of the violations they are reporting, but the time for filing may be extended in certain cases to up to ten years.
[Updated October 2023]
Massachusetts Whistleblower Law: The Massachusetts False Claims Act
Mass. Gen. Laws ch. 12 § 5. Civil actions to recover money for commonwealth
All civil actions to recover money
for the commonwealth may be brought in the name of the commonwealth by the
attorney general or by a district attorney.
Mass. Gen. Laws ch. 12 § 5A. False claims; definitions applicable to Secs. 5A to 5O
As used in sections 5A to 5O,
inclusive, the following words shall, unless the context clearly requires
otherwise, have the following meanings:–
“Claim”, a request or demand, whether
pursuant to a contract or otherwise, for money or property, whether or not the
commonwealth or a political subdivision thereof has title to the money or
property, that: (1) is presented to an officer, employee, agent or other
representative of the commonwealth or a political subdivision thereof; or (2)
is made to a contractor, subcontractor, grantee or other person, if the money
or property is to be spent or used on behalf of or to advance a program or
interest of the commonwealth or political subdivision thereof and if the
commonwealth or any political subdivision thereof: (i) provides or has provided
any portion of the money or property which is requested or demanded; or (ii)
will reimburse directly or indirectly such contractor, subcontractor, grantee
or other person for any portion of the money or property which is requested or
demanded. A claim shall not include requests or demands for money or property
that the commonwealth or a political subdivision thereof has paid to an
individual as compensation for employment with the commonwealth or a political
subdivision thereof or as an income subsidy with no restrictions on that
individual’s use of the money or property.
“False claims action”, an action filed by the office of the attorney general or a relator under sections 5A to 5O, inclusive.
“False claims law”, sections 5A to 5O, inclusive.
“Knowing” or “knowingly”, possessing actual knowledge of relevant information, acting with deliberate ignorance of
the truth or falsity of the information or acting in reckless disregard of the truth or falsity of the information; provided, however, that no proof of specific intent to defraud shall be required.
“Material”, having a natural tendency
to influence, or be capable of influencing, the payment or receipt of money or
property.
“Obligation”, an established duty,
whether or not fixed, arising from an express or implied contractual,
grantor-grantee or licensor-licensee relationship, from a fee-based or similar
relationship, from statute or regulation or from the retention of any
overpayment after the deadline for reporting and returning the overpayment
under paragraph (10) of section 5B.
“Original source”, an individual who:
(1) prior to a public disclosure under paragraph (3) of section 5G, has
voluntarily disclosed to the commonwealth or any political subdivision thereof
the information on which allegations or transactions in a claim are based; or
(2) has knowledge that is independent of and materially adds to the publicly-
disclosed allegations or transactions, and who has voluntarily provided the
information to the commonwealth or any political subdivision thereof before
filing a false claims action.
“Overpayment”, any funds that a
person receives or retains, including funds received or retained under Title
XVIII or XIX of the Social Security Act, to which the person, after applicable
reconciliation, is not entitled.
“Person”, a natural person,
corporation, partnership, association, trust or other business or legal entity.
“Political subdivision”, a city,
town, county or other governmental entity authorized or created by law,
including public corporations and authorities.
“Relator”, an individual who brings
an action under paragraph (2) of section 5C.
Mass. Gen. Laws ch. 12 § 5B. False claims; liability
(a) Any person who:
(1) knowingly presents, or causes to be presented, a
false or fraudulent claim for payment or approval;
(2) knowingly makes, uses or causes to be made or
used a false record or statement material to a false or fraudulent claim;
(3) conspires to commit a violation of this
subsection;
(4) knowingly presents, or causes to be presented, a
claim that-includes items or services resulting from a violation of section
1128B of the Social Security Act, 42 U.S.C. 1320a-7b, or section 41 of chapter
118E;
(5) has possession, custody or control of property
or money used, or to be used, by the commonwealth or a political subdivision
thereof and knowingly delivers, or causes to be delivered, to the commonwealth
or a political subdivision thereof less than all of that property or money;
(6) is authorized to make or deliver a document
certifying receipt of property used, or to be used, by the commonwealth or a
political subdivision thereof and, with the intent of defrauding the
commonwealth or a political subdivision thereof, makes or delivers the receipt
without completely knowing that the information on the receipt is true;
(7) knowingly buys, or receives as a pledge of an
obligation or debt, public property from an officer or employee of the
commonwealth or a political subdivision thereof, who may not lawfully sell or
pledge such property;
(8) enters into an agreement, contract or
understanding with an official of the commonwealth or a political subdivision
thereof knowing the information contained therein is false;
(9) knowingly makes, uses or causes to be made or
used a false record or statement material to an obligation to pay or to
transmit money or property to the commonwealth or a political subdivision
thereof, or knowingly conceals or knowingly and improperly avoids or decreases
an obligation to pay or transmit money or property to the commonwealth or a
political subdivision thereof; or
(10) is a beneficiary of an inadvertent submission
of a false claim to the commonwealth or a political subdivision thereof, or is
a beneficiary of an overpayment from the commonwealth or a political
subdivision thereof, and who subsequently discovers the falsity of the claim or
the receipt of overpayment and fails to disclose the false claim or receipt of
overpayment to the commonwealth or a political subdivision by the later of:
(i) the date which is 60 days after the date on
which the false claim or receipt of overpayment was identified; or
(ii) the date any corresponding cost report is due,
if applicable,
shall be liable to the commonwealth
or political subdivision for a civil penalty of not less than $5,500 and not
more than $11,000 per violation, as adjusted by the Federal Civil Penalties
Inflation Adjustment Act of 1990, Pub. L. No. 101-410 section 5, 104 Stat. 891,
note following 28 U.S.C. section 2461, plus 3 times the amount of damages,
including consequential damages, that the commonwealth or a political
subdivision thereof sustains because of such violation.
A person violating sections 5B to 5O,
inclusive, shall also be liable to the commonwealth or a political subdivision
thereof for the expenses of the civil action brought to recover any such
penalty or damages including, without limitation, reasonable attorneys’ fees,
reasonable expert fees and the costs of investigation, as set forth below.
Costs recoverable under said sections 5B to 5O, inclusive, shall also include
the costs of any review or investigation undertaken by the attorney general, or
by the state auditor or the inspector general in cooperation with the attorney
general.
(b) Notwithstanding subsection (a),
if the court finds that:
(1) the person committing the violation of
subsection (a) furnished an official of the office of the attorney general
responsible for investigating a false claims law violation with all the
information known to such person about the violation within 30 days after the
date on which the person first obtained the information;
(2) such person fully cooperated with any
commonwealth investigation of such violation; and
(3) at the time such person furnished the
commonwealth with the information about the violation, no civil action or
administrative action had commenced under sections 5B to 5O, inclusive, or no
criminal prosecution had commenced with respect to such violation, and such
person did not have actual knowledge of the existence of an investigation into
such violation, the court may assess not less than 2 times the amount of
damages, including consequential damages, that the commonwealth or a political
subdivision thereof sustains because of the act of that person.
(c) A corporation, partnership or
other person shall be liable to the commonwealth under sections 5B to 5O,
inclusive, for the acts of its agent where the agent acted with apparent
authority, regardless of whether the agent acted, in whole or in part, to
benefit the principal and regardless of whether the principal adopted or
ratified the agent’s claims, representation, statement or other action or
conduct.
(d) Sections 5B to 5O, inclusive,
shall not apply to claims, records or statements made or presented to
establish, limit, reduce or evade liability for the payment of tax to the
commonwealth or other governmental authority.
(e) A person who has engaged in
conduct described in subsection (a) prior to payment shall only be entitled to
payment from the commonwealth of the actual amount due less the excess amount
falsely or fraudulently claimed.
Mass. Gen. Laws ch. 12 § 5C. Violations under Secs. 5B to 5O; investigation by
attorney general; relators; civil actions
(1) The attorney general shall
investigate violations under sections 5B to 5O, inclusive, involving state
funds or funds from any political subdivision. If the attorney general finds
that a person has violated or is violating said sections 5B to 5O, inclusive,
the attorney general may bring a civil action in superior court against the
person.
(2) An individual, hereafter referred
to as relator, may bring a civil action in superior court for a violation of
said sections 5B to 5O, inclusive, on behalf of the relator and the
commonwealth or any political subdivision thereof. The action shall be brought
in the name of the commonwealth or the political subdivision thereof. The
action may be dismissed only if the attorney general gives written reasons for
consenting to the dismissal and the court approves the dismissal.
Notwithstanding any general or special law to the contrary, it shall not be a
cause for dismissal or a basis for a defense that the relator could have
brought another action based on the same or similar facts under any other law
or administrative proceeding.
(3) When a relator brings an action
under said sections 5B to 5O, inclusive, a copy of the complaint and written
disclosure of substantially all material evidence and information the relator
possesses shall be served on the attorney general pursuant to Rule 4(d) (3) of
the Massachusetts Rules of Civil Procedure. The complaint shall be filed under
seal and shall remain so for 120 days after service upon the attorney general.
Notwithstanding any other general or special law or procedural rule to the
contrary, service on the defendant shall not be required until the period
provided in paragraph (5). The attorney general may, for good cause shown, ask
the court for extensions during which the complaint shall remain under seal.
Any such motions may be supported by affidavits or other submissions under
seal. The attorney general may elect to intervene and proceed with the action
on behalf of the commonwealth or political subdivision within the 120-day
period or during any extension, after the attorney general receives both the
complaint and the material evidence and information. Any information or
documents furnished by the relator to the attorney general in connection with
an action or investigation under said sections 5B to 5O, inclusive, shall be
exempt from disclosure under section 10 of chapter 66.
(4) Before the expiration of the
initial 120 day period or any extensions obtained under paragraph (3), the
attorney general shall;
(i) assume control of the action, in which case the
action shall be conducted by the attorney general; or
(ii) notify the court that he declines to take over
the action, in which case the relator shall have the right to conduct the
action.
(5) If the attorney general decides
to proceed with the action, the complaint shall be unsealed and served promptly
thereafter. The defendant shall not be required to respond to any complaint
filed under said sections 5B to 5O, inclusive, until 20 days after the
complaint is unsealed and served upon the defendant pursuant to rule 4 of the
Massachusetts rules of civil procedure.
(6) When a relator brings an action
pursuant to this section, no person other than the attorney general may
intervene or bring a related action based on the facts underlying the pending
action.
(7) With respect to any federal,
state or local government that is named as a co-plaintiff with the commonwealth
in an action brought pursuant to sections 5B to 5O, inclusive, a seal on the
action ordered by the court under paragraph (3) shall not preclude the
commonwealth or the relator from serving the complaint, any other pleadings or
the written disclosure of substantially all material evidence and information
possessed by the relator on the law enforcement authorities that are authorized
under the law of that federal, state or local government to investigate and prosecute
such actions on behalf of such governments, except that such seal shall apply
to the law enforcement authorities so served to the same extent as the seal
applies to other parties in the action.
Mass. Gen. Laws ch. 12 § 5D. Prosecution by attorney general; relator’s right to
continue as party to action
(1) If the attorney general proceeds
with the action, he shall have primary responsibility for prosecuting the
action, and shall not be bound by any act of the relator. The relator shall
have the right to continue as a party to the action, subject to the limitations
in sections 5B to 5O, inclusive.
(2) The attorney general may dismiss
the action notwithstanding the objections of the relator if the relator has
been notified by the attorney general of the filing of the motion and the court
has provided the relator with an opportunity for a hearing on the motion. Upon
a showing of good cause, such hearing may be held in camera.
(3) The attorney general may settle
the action with the defendant notwithstanding the objections of the relator 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, such hearing may be held in camera.
(4) Upon a showing by the attorney
general that unrestricted participation during the course of the litigation by
the relator 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 relator’s participation, including but not limited to:
(i) limiting the number of witnesses the relator may
call;
(ii) limiting the length of the testimony of such
witnesses;
(iii) limiting the relator’s cross examination of
witnesses; or
(iv) otherwise limiting the participation by the
relator in the litigation.
(5) Upon a showing by the defendant
that unrestricted participation during the course of the litigation by the
relator would be for purposes of harassment or would cause the defendant undue
burden or unnecessary expense, the court may limit the participation by the
relator in the litigation.
(6) If the attorney general elects
not to proceed with the action, the relator who initiated the action shall have
the right to conduct the action. If the attorney general so requests, it shall
be served with copies of all pleadings filed in the action and shall be
supplied with copies of all deposition transcripts at the attorney general’s
expense. When a relator proceeds with the action, the court, without limiting
the status and rights of the relator initiating the action, may nevertheless
permit the attorney general to intervene at a later date upon a showing of good
cause.
(7) Whether or not the attorney
general proceeds with the action, upon a showing by the attorney general that
certain acts of discovery by the relator initiating the action would interfere
with the attorney general’s investigation or prosecution of a criminal or civil
matter arising out of the same or similar facts, the court may stay such
discovery for a period of not more than 60 days. Such showing by the attorney
general shall be conducted in camera. The court may extend the 60 day period
upon a further showing in camera that the attorney general has pursued the
criminal or civil investigation or proceedings with reasonable diligence and
may stay any proposed discovery in the civil action that will interfere with
the ongoing criminal or civil investigations or proceedings.
Mass. Gen. Laws ch. 12 § 5E. Alternate remedies available to determine civil penalty
Notwithstanding the provisions of
section 5C, the attorney general may elect to pursue its claim through any
alternate remedy available to the attorney general, including any
administrative proceeding, to determine a civil penalty. If any such alternate
remedy is pursued in another proceeding, a relator shall have the same rights
in such proceeding as said relator would have had if the action had continued
under said section 5C. Any finding of fact or conclusion of law made in such
other proceeding that has become final shall be conclusive on all parties to an
action under sections 5B to 5O, inclusive. For purposes of this section, a
finding or conclusion is final if it has been finally determined on appeal to
the appropriate court of the commonwealth, if all time for filing such an
appeal with respect to the finding or conclusion has expired, or if the finding
or conclusion is not subject to judicial review.
Mass. Gen. Laws ch. 12 § 5F. Payments to relators; limitations
(1) If the attorney general proceeds
with an action brought by a relator pursuant to section 5C, the relator shall
receive at least 15 per cent but not more than 25 per cent of the proceeds
recovered and collected in the action or in settlement of the claim depending
upon the extent to which the relator substantially contributed to the
prosecution of the action.
(2) Where the action is one which the
court finds to be based primarily on disclosures of specific information, other
than information provided by the relator, relating to allegations or
transactions in a criminal, civil, or administrative hearing; in a legislative,
administrative, auditor or inspector general hearing, audit, or investigation;
or from the news media, the court may award such sums as it considers
appropriate, but in no case more than 10 per cent of the proceeds, taking into
account the significance of the information and the role of the relator
bringing the action in advancing the case to litigation.
(3) Any payment to a relator pursuant
to this section shall be made only from the proceeds recovered and collected in
the action or in settlement of the claim. Any such relator shall also receive
an amount for reasonable expenses which the court finds to have been
necessarily incurred, including reasonable attorney’s fees and costs. All such
expenses, fees and costs shall be awarded against the defendant.
(4) If the attorney general does not
proceed with an action pursuant to section 5C, the relator bringing the action
or settling the claim shall receive an amount which the court decides is
reasonable for collecting the civil penalty and damages on behalf of the
commonwealth or any political subdivision thereof. The amount shall be not less
than 25 per cent nor more than 30 per cent of the proceeds recovered and
collected in the action or settlement of the claim, and shall be paid out of
such proceeds. The relator shall also receive an amount for reasonable expenses
which the court finds to have been necessarily incurred, including reasonable
attorney’s fees and costs. All such expenses, fees and costs shall be awarded
against the defendant.
(5) Whether or not the attorney
general proceeds with the action, if the court finds that the action was
brought by a relator who planned and initiated the violation of sections 5B to
5O, inclusive, upon which the action was brought, then the court may, to the
extent the court considers appropriate, reduce or eliminate the share of the
proceeds of the action which the relator would otherwise receive pursuant to
this section, taking into account the role of the relator in advancing the case
to litigation and any relevant circumstances pertaining to the violation. If
the relator bringing the action is convicted of criminal conduct arising from
his role in the violation of this section, the relator 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.
Mass. Gen. Laws ch. 12 § 5G. Actions brought against governor, lieutenant governor,
attorney general, treasurer, secretary of state, etc.; jurisdiction
(a) No court shall have jurisdiction
over an action brought pursuant to section 5C against the governor, the
lieutenant governor, the attorney general, the treasurer, the secretary of
state, the auditor, a member of the general court, the inspector general or a
member of the judiciary, if the action is based on evidence or information
known to the commonwealth when the action was brought.
(b) An individual may not bring an
action pursuant to paragraph (2) of said section 5C that is based upon
allegations or transactions which are the subject of a civil suit or an
administrative proceeding in which the commonwealth or any political
subdivision thereof is already a party.
(c) The court shall dismiss an action
or claim pursuant to sections 5B to 5O, inclusive, unless opposed by the
commonwealth or any political subdivision thereof, if substantially the same
allegations or transactions as alleged in the action or claim were publicly
disclosed:
(1) in a Massachusetts criminal, civil or
administrative hearing in which the commonwealth is a party;
(2) in a Massachusetts legislative, administrative,
auditor’s or inspector general’s report, hearing, audit or investigation; or
(3) from the news media, unless the action is
brought by the attorney general, or the relator is an original source of the
information.
Mass. Gen. Laws ch. 12 § 5H. Money recovered by commonwealth; false claims
prosecution fund
(1) All money recovered by the
commonwealth, as a result of actions brought by the attorney general or a
person pursuant to sections 5B to 5O, inclusive, other than costs and attorney’s
fees awarded pursuant to paragraph (2), shall be credited by the state
treasurer to the False Claims Prosecution Fund, established by section 2YY of
chapter 29.
(2) Costs and attorney’s fees awarded
to a relator by final judicial order in an action under this section shall be
paid directly by the defendant to the relator.
Mass.
Gen. Laws ch. 12 § 5I. Awards of attorney general fees and expenses; awards of
costs and attorney fees against relators; liability
(1) If the attorney general initiates
an action or assumes control of an action brought by a person pursuant to
sections 5B to 5O, inclusive, the attorney general shall be awarded his
reasonable attorney’s fees and expenses incurred in the litigation, including
costs, if he prevails in the action.
(2) If the attorney general does not
proceed with an action pursuant to sections 5B to 5O, inclusive, and the
defendant is the prevailing party, the court may award the defendant reasonable
attorneys’ fees and costs against the relator upon a written finding that such
action was pursued in bad faith or was wholly insubstantial, frivolous, and
advanced for the purpose of causing the defendant undue burden, unnecessary
expense or harassment.
(3) No liability shall be incurred by
the commonwealth, the affected agency or the attorney general for any expenses,
attorney’s fees or other costs incurred by any person in bringing or defending
an action under said sections 5B to 5O, inclusive.
Mass. Gen. Laws ch. 12 § 5J. Employers preventing employees from acting to further
false claim actions; liability
(1) No employer shall make, adopt or
enforce any rule, regulation or policy preventing an employee, contractor or
agent from disclosing information to a government or law enforcement agency or
from acting to further efforts to stop 1 or more violations of sections 5B to
5O, inclusive. No employer shall require as a condition of employment, during
the term of employment or at the termination of employment that any employee,
contractor or agent agree to, accept or sign an agreement that limits or denies
the rights of such employee, contractor or agent to bring an action or provide
information to a government or law enforcement agency pursuant to said sections
5B to 5O, inclusive. Any such agreement shall be void.
(2) An employee, contractor or agent
shall be entitled to all relief necessary to make that employee, contractor or
agent whole if that employee, contractor or agent is discharged, demoted,
suspended, threatened, harassed or in any other manner discriminated against in
the terms and conditions of employment because of lawful acts done by the
employee, contractor, agent or a person associated with the employee,
contractor or agent in furtherance of an action under sections 5B to 5O,
inclusive, or other efforts to stop a violation of said sections 5B to 5O,
inclusive.
(3) Notwithstanding any general or
special law to the contrary, relief under paragraph (2) shall include
reinstatement with the same seniority status the employee, contractor or agent
would have had but for the discrimination, twice the amount of back pay,
interest on the back pay and compensation for any special damages sustained as
a result of the discrimination. In addition, the defendant shall be required to
pay litigation costs and reasonable attorneys’ fees. An employee, contractor or
agent may bring an action in the appropriate superior court, the superior court
of the county of Suffolk or any other appropriate court for the relief provided
in this section.
(4) A civil action under this section
may not be brought more than 3 years after the date when the violation of this
section occurred.
Mass. Gen. Laws ch. 12 § 5K. Limitation of actions; intervention by attorney general;
final judgments in criminal proceedings
(1) A civil action pursuant to
sections 5B to 5O, inclusive, for a violation of section 5B may not be brought
(i) more than six years after the date on which the
violation occurred; or
(ii) 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 official within the office of the attorney general charged with
responsibility to act in the circumstances, but in no event more than ten years
after the date on which the violation is committed, whichever occurs last.
A civil action pursuant to sections
5B to 5O, inclusive, may be brought for acts or omissions that occurred prior
to the effective date of this section, subject to the limitations period set
forth in this section.
(2) If the attorney general elects to
intervene and proceed with an action brought pursuant to sections 5B to 5O,
inclusive, for a violation of section 5B, the attorney general may file a
complaint or amend the complaint of a person who has brought an action pursuant
to said sections 5B to 5O, inclusive, to clarify or add detail to the claims in
which the attorney general is intervening and to add any additional claims with
respect to which the commonwealth or a political subdivision thereof contends
it is entitled to relief. For statute of limitations purposes, any such
pleading shall relate back to the filing date of the complaint of the person
who originally-brought the action, to the extent that the claim of the attorney
general arises out of the conduct, transactions or occurrences set forth, or
attempted to be set forth, in the prior complaint of that person.
(3) Notwithstanding any other general
or special law, rule of procedure or rule of evidence to the contrary, a final
judgment rendered in favor of the commonwealth in a criminal proceeding
charging fraud or false statements, whether upon a verdict after trial or upon
a plea of guilty or nolo contendere, shall estop the defendant from denying the
essential elements of the offense in any action which involves the same act,
transaction or occurrence as in the criminal proceedings and which is brought
under section 5B.
Mass. Gen. Laws ch. 12 § 5L. Preponderance of the evidence standard
In any action brought pursuant to
sections 5B to 5O, inclusive, the party bringing the action shall be required
to prove all essential elements of the cause of action, including damages, by a
preponderance of the evidence.
Mass. Gen. Laws ch. 12 § 5M. Rules, regulations or guidelines; attorney general
The attorney general may promulgate
any rules, regulations or guidelines that, in the attorney general’s judgment,
are necessary and appropriate to the effective administration of this chapter.
Mass. Gen. Laws ch. 12 § 5N. Civil investigative demands; attorney general
(1) Notwithstanding any general or
special law, procedural rule or regulation to the contrary, whenever the
attorney general or a designee has reason to believe that a person may be in
possession, custody or control of documentary material or information relevant
to a false claims law investigation, the attorney general or a designee may,
before commencing a civil action under paragraph (1) of section 5C or other
false claims law, or making an election to intervene under paragraph (3) of
said section 5C, issue in writing and cause to be served upon such person, a
civil investigative demand requiring such person to:
(i) produce such documentary material for inspection
and copying;
(ii) answer written interrogatories, in writing and
under oath;
(iii) give oral testimony under oath; or
(iv) furnish any combination of such material,
answers or testimony.
The attorney general may delegate to
an assistant attorney general the authority to issue civil investigative
demands under this section.
(2) Service of a demand pursuant to
paragraph (1) may be made by:
(i) delivering a copy thereof to the person to be
served or to a partner or to any officer or agent authorized by appointment or
by law to receive service of process on behalf of such person;
(ii) delivering a copy thereof to the principal
place of business or the last and usual place of abode in the commonwealth of
the person to be served; or
(iii) mailing by registered or certified mail a copy
thereof addressed to the person to be served at the person’s last and usual
place of abode, the principal place of business in the commonwealth or, if said
person has no place of business in the commonwealth, to the person’s principal
office or place of business.
(3) Each such demand requesting
documentary material or oral testimony shall
(i) state the time and place of the taking of
testimony or the examination and the name and address of each person to be
examined, if known, and, if the name is not known, a general description
sufficient to identify the person or the particular class or group to which the
person belongs;
(ii) state the nature of the conduct constituting
the alleged violation of a false claims law which is under investigation, and
the applicable provision of law alleged to be violated;
(iii) describe the class or classes of documentary
material to be produced thereunder with such definiteness and certainty as to
permit such material to be fairly identified;
(iv) prescribe a return date within which the
documentary material is to be produced;
(v) identify the members of the attorney general’s
staff to whom such documentary material is to be made available for inspection
and copying; and
(vi) if such demand is for the giving of oral
testimony, notify the person receiving the demand of the right to be
accompanied by an attorney and any other representative, prescribe a date, time
and place at which oral testimony shall be commenced, identify the assistant
attorney general who shall conduct the examination and to whom the transcript
of such examination shall be submitted, specify that such attendance and
testimony are necessary to the conduct of the investigation, and describe the
general purpose for which the demand is being issued and the general nature of
the testimony, including the primary areas of inquiry, which will be taken
pursuant to the demand. Notice of the time and place of taking oral testimony
shall be given by the attorney general at least ten days prior to the date of
such taking of testimony or examination, unless the attorney general or an
assistant attorney general designated by the attorney general determines that
exceptional circumstances are present which warrant such taking of testimony
within a lesser period of time.
(4) The oral examination of all
persons pursuant to sections 5B to 5O, inclusive, shall be conducted before a
person duly authorized to administer oaths by the law of the commonwealth. Rule
30(e) of the Massachusetts Rules of Civil Procedure shall be applicable to oral
examinations conducted pursuant to said sections 5B to 5O, inclusive.
(5) Any person compelled to appear
for oral testimony under a civil investigative demand issued under said
sections 5B to 5O may be accompanied, represented and advised by counsel.
Counsel may advise such person, in confidence, with respect to any question
asked of such person. Such person or counsel may object on the record to any
question, in whole or in part, and shall briefly state for the record the
reason for the objection. An objection may be made, received, and entered upon
the record when it is claimed that such person is entitled to refuse to answer
the question on the grounds of any constitutional or other legal right or
privilege, including the privilege against self-incrimination. Such person may
not otherwise object to or refuse to answer any question, and may not directly
or through counsel otherwise interrupt the oral examination. If such person
refuses to answer any question, a motion may be filed for an order compelling
such person to answer such question.
(6) The production of documentary
material in response to a civil investigative demand served under sections 5B
to 5O, inclusive, shall be made under a sworn certificate, in such form as the
demand designates, by
(i) in the case of a natural person, the person to
whom the demand is directed, or
(ii) in the case of a person other than a natural
person, a person having knowledge of the facts and circumstances relating to
such production and authorized to act on behalf of such person.
The certificate shall state that all
of the documentary material required by the demand and in the possession,
custody or control of the person to whom the demand is directed has been
produced and made available to the members of the attorney general’s staff
identified in the demand.
(7) Each written interrogatory served
under sections 5B to 5O, inclusive, shall be answered separately and fully in
writing under the penalties of perjury. The person upon whom the
interrogatories have been served shall serve the answers and objections, if
any, upon the attorney general within 14 days after service of the
interrogatories.
(8) Any documentary material or other
information produced by a person pursuant to sections 5B to 5O, inclusive,
shall not, unless otherwise ordered by a justice of the superior court for good
cause shown, be disclosed to any other person other than the authorized agent
or representative of the attorney general and any officer or employee of the
commonwealth who is working under their direct supervision with respect to the
false claims law investigation, unless with the consent of the person producing
the same, except that any information obtained by the attorney general under
this section may be shared with any qui tam relator if the attorney general
determines it is necessary as part of a false claims act investigation. Such
documentary material or information may be disclosed by the attorney general in
court proceedings or in papers filed in court. Nothing in this section shall
preclude the attorney general from disclosing information and evidence secured
pursuant to said sections 5B to 5O, inclusive, to officials of the United
States, other states, the commonwealth or any political subdivision thereof
charged with the responsibility for enforcement of federal, state or local laws
respecting fraud or false claims upon federal, state or local governments.
Prior to any such disclosure, the attorney general shall obtain a written
agreement from such officials to abide by the restrictions of this section.
(9) At any time prior to the date
specified in the civil investigative demand, or within 21 days after the demand
has been served, whichever period is shorter, the court may, upon motion for
good cause shown, extend such reporting date or modify or set aside such demand
or grant a protective order in accordance with the standards set forth in Rule
26(c) of the Massachusetts Rules of Civil Procedure. The motion may be filed in
the superior court of the county in which the person served resides or has his
usual place of business, or in Suffolk county.
(10) Whenever any person fails to
comply with any civil investigative demand issued under sections 5B to 5O,
inclusive, the attorney general may file, in the superior court of the county
in which such person resides, is found, or transacts business, a motion for the
enforcement of the civil investigative demand. The Massachusetts Rules of Civil
Procedure shall apply to any such motion. Any final order entered pursuant to
such petition may also include the assessment of a civil penalty of not more
than $5,000 for each act or instance of noncompliance.
(11) All such information and
documentary materials as are obtained by the attorney general pursuant to
sections 5B to 5O, inclusive, shall not be public records and are exempt from
disclosure under section 10 of chapter 66 or any other law.
(12) For purposes of sections 5B to 5O, inclusive, “documentary material” shall include the original or any copy of
any book, record, report, memorandum, paper, communication, tabulation, chart
or other document or graphic representation, or data stored in or accessible
through a computer or other information retrieval systems, together with
instructions and all other materials necessary to use or interpret such data.
(13) Nothing in sections 5B to 5O, inclusive, shall be construed to authorize the attorney general to compel the
production of information or documents from the state auditor or from the
inspector general, unless otherwise authorized by law. Nothing in this chapter
shall bar the attorney general from referring matters or disclosing information
or documents to the state auditor or to the inspector general for purposes or
any review or investigation they may deem appropriate.
Mass. Gen. Laws ch. 12 § 5O. Agency reporting requirements
Nothing in sections 5B to 5M, inclusive, shall be construed to relieve an agency of its reporting
requirements regarding matters within that agency under chapter 647 of the acts
of 1989.