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Regular Session, 2010 ENROLLED
SENATE BILL NO. 531
BY SENATOR CLAITOR AND REPRESENTATI VES BOBBY BADON, BALDONE,
BILLIOT, HENRY BURNS, CARMODY, CARTER, CONNICK,
DIXON, FOIL, GISCLAIR, HARRISON, HENRY, HOFFMANN,
HONORE, SAM JONES, LEGER, LOPINTO, SIMON, GARY SMITH,
JANE SMITH, ST. GERMAIN AND WADDELL
AN ACT1
To enact Chapter 22-A of Title 39 of the Louisiana Revised Statutes of 1950, comprised of R.S.2
39:2165 through 2165.12, relative to actions and qui tam actions; to authorize actions and3
qui tam actions for certain matters related to oil spill relief programs; to provide4
definitions, terms, procedures, conditions, and requirements; to provide relative to5
damages and awards; and to provide for related matters.6
Be it enacted by the Legislature of Louisiana:7
Section 1. Chapter 22-A of Title 39 of the Louisiana Revised Statutes of 1950, comprised8
of R.S. 39:2165 through 2165.12, is hereby enacted to read as follows:9
CHAPTER 22-A. OIL SPILL RELIEF PROGRAMS INTEGRITY ACT10
§2165. Short title11
This Chapter may be cited as the "Oil Spill Relief Programs Integrity Act".12
§2165.1. Legislative intent and purpose13
The legislature intends the attorney general and private citizens of Louisiana14
to be agents of this state with the ability, authority, and resources to pursue civil15
monetary penalties or other remedies to protect the fiscal and programmatic16
integrity of oil spill relief programs in Louisiana from persons who engage in fraud,17
misrepresentation, abuse, or other ill practices, as set forth in this Chapter, and18
obtain funds, property, or other compensation to which they are not entitled.19
§2165.2. Definitions20
As used in this Chapter, the following terms shall have the following21
meanings:22
(1) "Claim" includes any request or demand, including any and all23 SB NO. 531 ENROLLED
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documents or information required by federal or state law or by rule, made against1
oil spill relief program funds for payment. Each claim may be treated as a separate2
claim or several claims may be combined to form one claim.3
(2) "False or fraudulent claim" means a claim which a person submits4
knowing the claim to be false, fictitious, untrue, or misleading in regard to any5
material information. "False or fraudulent claim" shall include a claim which is part6
of a pattern of incorrect submissions in regard to material information or which is7
otherwise part of a pattern in violation of applicable federal or state law or rule.8
(3) "Knowing" or "knowingly" means that the person has actual knowledge9
of the information or acts in deliberate ignorance or reckless disregard of the truth10
or falsity of the information.11
(4) "Misrepresentation" means the knowing failure to truthfully or fully12
disclose any and all information required, or the concealment of any and all13
information required on a claim or provider agreement or the making of a false or14
misleading statement to any local, state, or federal agency for the purpose of15
obtaining funds, property, use of property, or other compensation from oil spill16
relief programs.17
(5) "Oil spill relief program" means any state or federal program or fund18
created for the purpose of assisting persons who incurred personal, business, or19
property damage or other losses due to the Deepwater Horizon Oil Spill. It shall not20
include any matter specifically subject to other qui tam action by law, including qui21
tam actions on behalf of hurricane relief programs and on behalf of medical22
assistance programs.23
(6) "Person" means a natural person or a juridical person.24
(7) "Property" means any and all property, movable and immovable,25
corporeal and incorporeal.26
(8) "Recovery" means the recovery of overpayments, damages, fines,27
penalties, costs, expenses, restitution, attorney fees, interest, or settlement amounts.28
§2165.3. False or fraudulent claim; misrepresentation29
A. No person shall knowingly present or cause to be presented a false or30 SB NO. 531 ENROLLED
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fraudulent claim for funds, property, use of property, or other compensation from1
an oil spill relief program.2
B. No person shall knowingly engage in misrepresentation to obtain, or3
attempt to obtain, funds, property, use of property, or other compensation from an4
oil spill relief program.5
C. No person shall conspire to defraud, or attempt to defraud, an oil spill6
relief program through misrepresentation or by obtaining, or attempting to obtain7
payment for a false or fraudulent claim.8
D. No person shall knowingly make, use, or cause to be made or used a false,9
fictitious, or misleading statement on any form or document for the purpose of10
certifying or qualifying any person for eligibility for oil spill relief programs or11
receiving any funds, property, use of property, or other compensation from an oil12
spill relief program that that person is not authorized to receive.13
E. Each violation of this Section may be treated as a separate violation or14
may be combined into one violation at the option of the attorney general.15
F. No action brought pursuant to this Section shall be instituted later than16
ten years after the date upon which the alleged violation occurred; however, the17
action shall be instituted within one year of when the attorney general knew that the18
prohibited conduct occurred.19
§2165.4. Civil actions authorized20
A. In addition to any other civil, criminal, or administrative action21
authorized by law, the attorney general may institute a civil action in the courts of22
this state to seek recovery from persons who violate the provisions of this Chapter.23
B. An action to recover costs, expenses, fees, and attorney fees shall be24
ancillary to, and shall be brought and heard in the same court as, the civil action25
brought under the provision of Subsection A of this Section.26
C.(1) A prevailing defendant may seek only recovery for costs, expenses, fees,27
and attorney fees if the court finds, following a contradictory hearing, that either of28
the following apply:29
(a) The action was instituted by the attorney general pursuant to Subsection30 SB NO. 531 ENROLLED
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A of this Section after it should have been determined by the attorney general to be1
frivolous, vexatious, or brought primarily for the purpose of harassment.2
(b) The attorney general proceeded with the action instituted pursuant to3
Subsection A of this Section after it should have been determined by the attorney4
general that proceeding would be frivolous, vexatious, or for the purpose of5
harassment.6
(2) Recovery awarded to a prevailing defendant shall be awarded only for7
those reasonable, necessary, and proper costs, expenses, fees, and attorney fees8
actually incurred by the prevailing defendant.9
D. An action to recover costs, expenses, fees, and attorney fees may be10
brought no later than sixty days after the rendering of judgment by the district11
court, unless the district court decision is appealed. If the district court decision is12
appealed, such action may be brought no later than sixty days after the rendering13
of the final opinion on appeal by the court of appeal or, if applicable, by the supreme14
court.15
§2165.5. Damages; fines; penalties; interest16
A. Actual damages incurred as a result of a violation of the provisions of this17
Chapter shall be recovered only once on behalf of the oil spill relief program and18
shall not be waived by the court. Actual damages shall equal the difference between19
the amounts received by the person from the oil spill relief program and the value20
of the benefits that the person should have received had not a violation of this21
Chapter occurred plus interest at the maximum rate of legal interest provided by22
R.S. 13:4202 from the date the damage occurred to the date of repayment.23
B. Except as limited by this Section, any person who is found to have violated24
any provision of this Chapter shall be subject to a civil fine in an amount not to25
exceed three times the amount of actual damages sustained by the oil spill relief26
program as a result of the violation.27
C. In addition to any other penalty or fine imposed herein, any person who28
is found to have violated any provision of this Chapter shall be subject to a civil29
monetary penalty of not more than ten thousand dollars for each false or fraudulent30 SB NO. 531 ENROLLED
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claim, misrepresentation, illegal remuneration, or other act prohibited by this1
Chapter.2
D. Costs, expenses, fees, and attorney fees. (1) Any person who is found to3
have violated this Chapter shall be liable for all costs, expenses, and fees related to4
investigations and proceedings associated with the violation, including attorney fees.5
(2) All awards of costs, expenses, fees, and attorney fees are subject to review6
by the court using a reasonable, necessary, and proper standard of review.7
(3) The attorney general shall promptly remit awards for those costs,8
expenses, and fees incurred by the various clerks of court or sheriffs involved in the9
investigations or proceedings to the appropriate clerk or sheriff.10
§2165.6. Qui tam action; civil action filed by private person11
A. A private person may institute a civil action to seek recovery on behalf of12
oil spill relief programs and himself, except for the civil monetary penalty provided13
in R.S. 39:2165.5(C), for a violation of this Chapter. The institutor shall be known14
as a "qui tam plaintiff" and the civil action shall be known as a "qui tam action".15
B.(1) A qui tam plaintiff shall be an original source of the information which16
serves as the basis for the alleged violation. More than one person may serve as a qui17
tam plaintiff in a qui tam action arising out of the same information and allegations18
provided each person qualifies as an original source.19
(2) For purposes of this Section, the term "original source" means a person20
who has direct and independent knowledge of the alleged violation and who has21
voluntarily provided the information to the attorney general before filing a qui tam22
action with the court.23
C. No qui tam action shall be instituted later than one year after the date a24
qui tam complaint is received by the attorney general.25
D.(1) No court shall have jurisdiction over a qui tam action based upon a26
disclosure of allegations or transactions in a criminal, civil, or administrative27
hearing or as the result of disclosure of a governmental audit report, investigation,28
or hearing unless the person bringing the action is an original source of the29
information.30 SB NO. 531 ENROLLED
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(2) No court shall have jurisdiction over a qui tam action based upon a1
disclosure through the media unless the person bringing the action is an original2
source of the information and that fact is confirmed by a person with knowledge of3
who provided the information.4
E.(1) A person who is or was a public employee or public official or a person5
who is or was acting on behalf of the state shall not bring a qui tam action if the6
person has or had a duty or obligation to report, investigate, or pursue allegations7
of wrongdoing or misconduct by persons receiving funds pursuant to an oil spill8
relief program.9
(2) A person who is or was a public employee or public official or a person10
who is or was acting on behalf of the state shall not bring a qui tam action if the11
person has or had access to records of the state through the normal course and scope12
of his employment or other relationship with the state.13
F. No employer of a qui tam plaintiff shall discharge, demote, suspend,14
threaten, harass, or discriminate against a qui tam plaintiff at any time arising out15
of the fact that the qui tam plaintiff brought an action pursuant to this Chapter16
unless the court finds that the qui tam plaintiff has instituted or proceeded with an17
action that is frivolous, vexatious, or harassing.18
G. The court shall allow the attorney general to intervene and proceed with19
the qui tam action in the district court at any time during the qui tam action20
proceedings.21
H. Notwithstanding any other law to the contrary, a qui tam complaint and22
information filed with the attorney general shall not be subject to discovery or23
become public record until judicial service of the qui tam action is made on any of24
the defendants, except that the information contained therein may be given to other25
governmental entities or their authorized agents for review and investigation. Such26
entities and their authorized agents shall maintain the confidentiality of the27
information provided to them under this Subsection.28
§2165.7. Qui tam action procedures29
A. The following procedures shall be applicable to a qui tam action:30 SB NO. 531 ENROLLED
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(1) The complaint shall be captioned: "Oil Spill Relief Program Ex Rel.:1
[insert name of qui tam plaintiff(s)] v. [insert name of defendant(s)]".2
(2)(a) A copy of the qui tam complaint and written disclosure of substantially3
all material evidence and information each qui tam plaintiff possesses shall be filed4
with the attorney general.5
(b) The qui tam complaint and written disclosure of substantially all material6
evidence and information shall be filed with the attorney general within one year of7
the date the qui tam plaintiff knew or should have known of the information forming8
the basis of the complaint. No qui tam action shall be instituted by a qui tam plaintiff9
if he fails to timely file a complaint with the attorney general.10
(3)(a) At least thirty days after filing with the attorney general, the qui tam11
complaint and information may be filed with the appropriate state district court. On12
the same date as the qui tam action is filed, the qui tam plaintiff shall serve the13
attorney general with notice of the filing.14
(b) If more than one qui tam action arising out of the same information and15
allegations is filed, the court shall dismiss all qui tam actions where the complaint16
and information filed with the attorney general were filed thirty days or more after17
the first qui tam complaint and information which serve as the basis for the alleged18
violation were filed with the attorney general.19
(4)(a) The complaint and information filed with the court shall be made20
under seal, shall remain under seal for at least ninety days from the date of filing,21
and shall be served on the defendant when the seal is removed.22
(b) For good cause shown, the attorney general may request one extension of23
the ninety-day time period for the complaint and information to remain under seal24
and unserved on the defendant. This request shall be supported by affidavit or other25
submission in camera and under seal.26
B.(1) If the attorney general elects to intervene in the action, the attorney27
general shall not be bound by any act of a qui tam plaintiff. The attorney general28
shall control the qui tam action proceedings on behalf of the state, and the qui tam29
plaintiff may continue as a party to the action.30 SB NO. 531 ENROLLED
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(2) The qui tam plaintiff and his counsel shall cooperate fully with the1
attorney general during the pendency of the qui tam action.2
(3) If requested by the attorney general and notwithstanding the objection3
of the qui tam plaintiff, the court may dismiss the qui tam action provided the qui4
tam plaintiff has been notified by the attorney general of the filing of the motion to5
dismiss and the court has provided the qui tam plaintiff a contradictory hearing on6
the motion.7
(4) If the attorney general does not intervene, the qui tam plaintiff may8
proceed with the qui tam action unless the attorney general shows that proceeding9
would adversely affect the prosecution of any pending criminal actions or criminal10
investigations into the activities of the defendant. Such a showing shall be made to11
the court in camera and neither the qui tam plaintiff nor the defendant shall be12
informed of the information revealed in camera. In which case, the qui tam action13
shall be stayed for no more than one year.14
(5) If the qui tam plaintiff objects to a settlement of the qui tam action15
proposed by the attorney general, the court may authorize the settlement only after16
a hearing to determine whether the proposed settlement is fair, adequate, and17
reasonable under the circumstances.18
C. If a qui tam plaintiff fails to comply with any provision of this Chapter,19
after a contradictory hearing, the court may dismiss the qui tam plaintiff on its own20
motion or on motion made by the attorney general.21
D. A defendant shall have thirty days from the time a qui tam complaint is22
served on him to file a responsive pleading.23
E. The qui tam plaintiff and the defendant shall serve all pleadings and24
papers filed, as well as discovery, in the qui tam action on the attorney general.25
F.(1) Whether or not the attorney general proceeds with the action, upon26
showing by the attorney general that certain actions of discovery by the qui tam27
plaintiff or defendant would interfere with a criminal or civil investigation or28
proceeding arising out of the same facts, the court shall stay the discovery for a29
period of not more than ninety days.30 SB NO. 531 ENROLLED
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(2) Upon a further showing that federal or state authorities have pursued the1
criminal or civil investigation or proceeding with reasonable diligence and any2
proposed discovery in the qui tam action would unduly interfere with the criminal3
or civil investigation or proceeding, the court may stay the discovery for an4
additional period, not to exceed one year.5
(3) Such showings shall be conducted in camera and neither the defendant6
nor the qui tam plaintiff shall be informed of the information presented to the court.7
(4) If discovery is stayed pursuant to this Subsection, the trial and any motion8
for summary judgment in the qui tam action shall likewise be stayed.9
§2165.8. Administrative or civil action10
Notwithstanding any other provision of this Chapter, the attorney general11
may elect to pursue an administrative or civil action against a qui tam defendant12
through any alternative remedy available to the attorney general.13
§2165.9. Recovery awarded to a qui tam plaintiff14
A.(1) Except as provided by Subsection D of this Section and Paragraph (3)15
of this Subsection, if the attorney general intervenes in the action brought by a qui16
tam plaintiff, the qui tam plaintiff shall receive at least ten percent, but not more17
than twenty percent, of actual damages and civil fines awarded by the court,18
exclusive of the civil monetary penalty provided by R.S. 39:2165.5(C).19
(2) In making a determination of award to the qui tam plaintiff, the court20
shall consider the extent to which the qui tam plaintiff substantially contributed to21
investigations and proceedings related to the qui tam action.22
(3) If the court finds the allegations in the qui tam action to be based23
primarily on disclosures of specific information other than information provided by24
the qui tam plaintiff, the court may award less than ten percent of actual damages25
and civil fines awarded by the court, exclusive of the civil monetary penalty provided26
in R.S. 39:2165.5(C), taking into account the significance of the information and the27
role of the qui tam plaintiff in advancing the qui tam action to judgment or28
settlement.29
B. Except as provided by Subsection D of this Section, if the attorney general30 SB NO. 531 ENROLLED
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does not intervene in the qui tam action, the qui tam plaintiff shall receive an1
amount, not to exceed thirty percent of actual damages, civil fines, and the civil2
monetary penalty provided for in R.S. 39:2165.5(C), which the court decides is3
reasonable for the qui tam plaintiff pursuing the action to judgment or settlement.4
C.(1) In addition to all other recovery to which he is entitled and if he5
prevails in the qui tam action, the qui tam plaintiff shall be entitled to an award6
against the defendant for costs, expenses, fees, and attorney fees, subject to review7
by the court using a reasonable, necessary, and proper standard of review.8
(2) If the attorney general does not intervene and the qui tam plaintiff9
conducts the action, the court shall award costs, expenses, fees, and attorney fees to10
a prevailing defendant if the court finds that the allegations made by the qui tam11
plaintiff were meritless or brought primarily for the purposes of harassment. A12
finding by the court that qui tam allegations were meritless or brought primarily for13
the purposes of harassment may be used by the prevailing defendant in the qui tam14
action or any other civil proceeding to recover losses or damages sustained as a15
result of the qui tam plaintiff filing and pursuing such a qui tam action.16
D. Whether or not the attorney general intervenes, if the court finds that the17
action was brought by a person who participated in the violation which is the subject18
of the action, then the court may, to the extent the court considers appropriate,19
reduce the share of the proceeds of the action which the qui tam plaintiff would20
otherwise receive under Subsection A or B of this Section, taking into account the21
role that the qui tam plaintiff played in advancing the case to judgment or settlement22
and any relevant circumstances pertaining to the qui tam plaintiff's participation in23
the violation. A person who planned the violation shall not be entitled to recovery.24
E. When more than one party serves as a qui tam plaintiff, the share of25
recovery each receives shall be determined by the court. In no case, however, shall26
the total award to multiple qui tam plaintiffs be greater than the total award allowed27
to a single qui tam plaintiff under Subsection A or B of this Section.28
F. In no instance shall the attorney general or the state be liable for any costs,29
expenses, fees, or attorney fees incurred by the qui tam plaintiff or for any award30 SB NO. 531 ENROLLED
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entered against the qui tam plaintiff.1
G. The percentage of the share awarded to or settled for by the qui tam2
plaintiff shall be determined using the total amount of the award. However, the total3
amount of funds lost from the oil spill relief program must be made whole through4
the payment of any and all actual damages prior to the disbursement of any funds5
related to the percentage of the damages to be received by the qui tam plaintiff.6
§2165.10. Oil Spill Relief Programs Fraud Detection Fund7
A. The Oil Spill Relief Programs Fraud Detection Fund, hereafter referred8
to as the "fund", is created in the state treasury as a special fund. The monies in the9
fund shall be invested by the state treasurer in the same manner as monies in the10
state general fund and interest earned on the investment of monies in the fund shall11
be credited to the fund. All unexpended and unencumbered monies in the fund at12
the end of each fiscal year shall remain in the fund.13
B. After compliance with the requirements of Article VII, Section 9(B) of the14
Constitution of Louisiana relative to the Bond Security and Redemption Fund, and15
prior to monies being placed in the state general fund, all monies received by the16
state pursuant to a civil award granted or settlement under the provisions of this17
Chapter, except for the amount to make oil spill relief programs whole, shall be18
deposited into the fund.19
C. Except as provided in this Subsection, the monies in the fund shall be20
appropriated by the legislature for the following purposes only:21
(1) To pay costs or expenses incurred by the attorney general relative to an22
action instituted pursuant to this Chapter.23
(2) To enhance fraud and abuse detection and prevention activities related24
to oil spill relief programs.25
(3) To pay rewards for information concerning fraud and abuse as provided26
in this Chapter.27
(4) To provide a source of revenue for oil spill relief programs in this state to28
help citizens who were affected by the Deepwater Horizon Oil Spill recover from the29
damages they sustained.30 SB NO. 531 ENROLLED
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§2165.11. Rewards for fraud and abuse information1
A. The attorney general may provide a reward of up to two thousand dollars2
to an individual who submits information to the attorney general which results in3
recovery pursuant to the provisions of this Chapter, provided such individual is not4
himself subject to recovery under this Chapter.5
B. The attorney general shall grant rewards only to the extent monies are6
appropriated for this purpose from the Oil Spill Relief Programs Fraud Detection7
Fund. The attorney general shall determine the amount of a reward, not to exceed8
two thousand dollars per individual per action, and establish a process to grant the9
reward in accordance with rules and regulations promulgated in accordance with10
the Administrative Procedure Act.11
§2165.12. Whistleblower protection and cause of action12
A. No employee shall be discharged, demoted, suspended, threatened,13
harassed, or discriminated against in any manner in the terms and conditions of his14
employment because of any lawful act engaged in by the employee or on behalf of15
the employee in furtherance of any action taken pursuant to this Chapter in regard16
to a person from whom recovery is or could be sought. Such an employee may seek17
any and all relief for his injury to which he is entitled under state or federal law.18
B. No individual shall be threatened, harassed, or discriminated against in19
any manner by a business organization, government agency, or other person because20
of any lawful act engaged in by the individual or on behalf of the individual in21
furtherance of any action taken pursuant to this Chapter in regard to a person from22
whom recovery is or could be sought. Such an individual may seek any and all relief23
for his injury to which he is entitled under state or federal law.24
C.(1) An employee of a private entity may bring his action for relief against25
his employer in the same court as the action or actions were brought pursuant to this26
Chapter.27
(2) A person aggrieved of a violation of Subsection A or B of this Section shall28
be entitled to treble damages.29
D. A qui tam plaintiff shall not be entitled to recovery pursuant to this30 SB NO. 531 ENROLLED
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Section if the court finds that the qui tam plaintiff instituted or proceeded with an1
action that was frivolous, vexatious, or harassing.2
PRESIDENT OF THE SENATE
SPEAKER OF THE HOUSE OF REPRESENTATIVES
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: