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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY WILLIAMS, D. WHITE, FONTANA, FERLO, O'PAKE, BRUBAKER, ERICKSON, M. WHITE, DINNIMAN, FARNESE, BOSCOLA, RAFFERTY, GORDNER, TARTAGLIONE, FOLMER, LEACH, PIPPY AND WARD, OCTOBER 8, 2009 |
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| REFERRED TO JUDICIARY, OCTOBER 8, 2009 |
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| AN ACT |
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1 | Providing for liability for false claims, for adoption of |
2 | Congressional intent of the Federal False Claims Act, for |
3 | treble damages, costs and civil penalties, for powers of the |
4 | Attorney General and for qui tam actions. |
5 | TABLE OF CONTENTS |
6 | Chapter 1. Preliminary Provisions |
7 | Section 101. Short title. |
8 | Section 102. Declaration of policy. |
9 | Section 103. Definitions. |
10 | Chapter 3. False Claims |
11 | Section 301. Acts subjecting persons to liability for treble |
12 | damages, costs and civil penalties; exceptions. |
13 | Section 302. Attorney General investigations and prosecutions; |
14 | powers of prosecuting authority; civil actions by |
15 | individuals as qui tam plaintiff and as private |
16 | citizen; jurisdiction of courts; service; information |
17 | sharing. |
18 | Section 303. Limitation of actions; prior activities; burden of |
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1 | proof. |
2 | Section 304. Remedies under other laws; severability of |
3 | provisions; liberality of legislative construction. |
4 | Section 305. Regulations. |
5 | Chapter 21. Miscellaneous Provisions |
6 | Section 2101. Effective date. |
7 | The General Assembly of the Commonwealth of Pennsylvania |
8 | hereby enacts as follows: |
9 | CHAPTER 1 |
10 | PRELIMINARY PROVISIONS |
11 | Section 101. Short title. |
12 | This act shall be known and may be cited as the False Claims |
13 | Act. |
14 | Section 102. Declaration of policy. |
15 | The General Assembly declares that this act adopts the intent |
16 | of Congress in enacting the Federal False Claims Act (Public Law |
17 | 97-258, 31 U.S.C. §§ 3729-3733) on September 13, 1982, including |
18 | the amendments (Public Law 99-562, 100 Stat. 3153) enacted |
19 | October 27, 1986. |
20 | Section 103. Definitions. |
21 | The following words and phrases when used in this act shall |
22 | have the meanings given to them in this section unless the |
23 | context clearly indicates otherwise: |
24 | "Claim." A request or demand for money, property or |
25 | services, regardless of whether the Commonwealth has title to |
26 | the money or services, made to any employee, officer or agent of |
27 | the Commonwealth, or to any contractor, grantee or other |
28 | recipient, if the money or property is to be spent or used on |
29 | the Commonwealth's behalf or to advance a program or interest, |
30 | regardless of whether under contract or not, if any portion of |
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1 | the money, property or services requested or demanded, issued |
2 | from or was provided using Commonwealth funds, or if the |
3 | Commonwealth will reimburse the contractor, grantee or other |
4 | recipient for any portion of the money or property requested or |
5 | demanded. To the extent it is not connected to a request or |
6 | demand for reimbursement from the Commonwealth or its political |
7 | subdivisions or a request or demand for a contract or grant with |
8 | the Commonwealth or its political subdivisions, a filing with a |
9 | Commonwealth agency shall not constitute a claim. The term also |
10 | does not include requests or demands for money or property the |
11 | Commonwealth has paid to an individual as compensation for |
12 | employment or as an income subsidy with no restrictions on the |
13 | individual's use of the money or property. |
14 | "Employer." A natural person, corporation, firm, |
15 | association, organization, partnership, business, trust or |
16 | Commonwealth-affiliated entity involved in a nongovernmental |
17 | function, including State universities and State hospitals. |
18 | "Knowingly." Whenever a person, with respect to information, |
19 | does any of the following: |
20 | (1) Has actual knowledge of the information. |
21 | (2) Acts in deliberate ignorance of the truth or falsity |
22 | of the information. |
23 | (3) Acts in reckless disregard of the truth or falsity |
24 | of the information. Proof of specific intent to defraud is |
25 | not required. |
26 | "Material." A natural tendency to influence, or be capable |
27 | of influencing, the payment or receipt of money or property. |
28 | "Obligation." An established duty, whether or not fixed, |
29 | arising from an express or implied contractual, grantor-grantee |
30 | or licensor-licensee relationship, from a fee-based or similar |
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1 | relationship, from statute or regulation, or from the retention |
2 | of any overpayment. |
3 | "Person." A natural person, corporation, firm, association, |
4 | organization, partnership, business or trust. |
5 | "Qui tam plaintiff." A person bringing a civil action under |
6 | section 301. |
7 | CHAPTER 3 |
8 | FALSE CLAIMS |
9 | Section 301. Acts subjecting persons to liability for treble |
10 | damages, costs and civil penalties; exceptions. |
11 | (a) Liability.--A person who commits acts prohibited in |
12 | subsection (b) shall be liable to the Commonwealth for three |
13 | times the amount of damages which the Commonwealth sustains |
14 | because of the act of that person. |
15 | (b) Prohibited acts.--A person who commits any of the |
16 | following acts shall also be liable to the Commonwealth for the |
17 | costs of a civil action brought to recover any of those |
18 | penalties or damages and shall be liable to the Commonwealth for |
19 | a civil penalty of not less than $5,000 and not more than |
20 | $10,000, as adjusted by the Federal Civil Penalties Inflation |
21 | Adjustment Act of 1990 (Public Law 101-410, 104 Stat. 890), for |
22 | each violation: |
23 | (1) Knowingly presents or causes to be presented a false |
24 | or fraudulent claim for payment or approval. |
25 | (2) Knowingly makes, uses or causes to be made or used, |
26 | a false record or statement material to get a false or |
27 | fraudulent claim. |
28 | (3) Conspires to commit a violation of paragraph (1), |
29 | (2), (4), (5), (6) or (7). |
30 | (4) Has possession, custody or control of public |
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1 | property or money used or to be used by the Commonwealth and |
2 | knowingly delivers or causes to be delivered less than all of |
3 | the money or property. |
4 | (5) Is authorized to make or deliver a document |
5 | certifying receipt of property used or to be used by the |
6 | Commonwealth and knowingly makes or delivers a receipt that |
7 | falsely represents the property used or to be used. |
8 | (6) Knowingly buys or receives as a pledge of an |
9 | obligation or debt, public property from any person who |
10 | lawfully may not sell or pledge the property. |
11 | (7) Knowingly makes, uses or causes to be made or used, |
12 | a false record or statement material to an obligation to pay |
13 | or transmit money or property to the Commonwealth or |
14 | knowingly conceals or knowingly and improperly avoids or |
15 | decreases an obligation to pay or transmit money or property |
16 | to the Commonwealth. |
17 | (8) Is a beneficiary of an inadvertent submission of a |
18 | false claim to any employee, officer or agent of the |
19 | Commonwealth or to any contractor, grantee or other recipient |
20 | of Commonwealth funds, subsequently discovers the falsity of |
21 | the claim and fails to disclose the false claim to the |
22 | Commonwealth within a reasonable time after discovery of the |
23 | false claim. |
24 | (c) Damages limitation.--Notwithstanding subsection (a), the |
25 | court may assess not less than two times the amount of damages |
26 | which the Commonwealth sustains because of the act of the person |
27 | described in that subsection and no civil penalty if the court |
28 | finds all of the following: |
29 | (1) The person committing the violation furnished the |
30 | Commonwealth officials who are responsible for investigating |
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1 | false claims violations with all information known to that |
2 | person about the violation within 30 days after the date on |
3 | which the person first obtained the information. |
4 | (2) The person fully cooperated with any investigation |
5 | by the Commonwealth. |
6 | (3) At the time the person furnished the Commonwealth |
7 | with information about the violation, no criminal |
8 | prosecution, civil action or administrative action has |
9 | commenced with respect to the violation, and the person did |
10 | not have actual knowledge of the existence of an |
11 | investigation into the violation. |
12 | (d) Exclusion.--This section does not apply to claims, |
13 | records or statements made under the act of March 4, 1971 |
14 | (P.L.6, No.2), known as the Tax Reform Code of 1971. |
15 | Section 302. Attorney General investigations and prosecutions; |
16 | powers of prosecuting authority; civil actions by |
17 | individuals as qui tam plaintiff and as private |
18 | citizen; jurisdiction of courts; services; |
19 | information sharing. |
20 | (a) Responsibilities of the Attorney General.--The Attorney |
21 | General shall diligently investigate a violation of section 301. |
22 | If the Attorney General finds that a person has violated or is |
23 | violating section 301, the Attorney General may bring a civil |
24 | action under this section against that person. |
25 | (b) Actions by private persons.-- |
26 | (1) A person may bring a civil action for a violation of |
27 | this act for the person and for the Commonwealth in the name |
28 | of the Commonwealth. The person bringing the action shall be |
29 | referred to as the qui tam plaintiff. Once filed, the action |
30 | shall be dismissed only with the written consent of the |
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1 | court, taking into account the best interest of the parties |
2 | involved and the policy of this act. |
3 | (2) A copy of the complaint and written disclosure of |
4 | substantially all material evidence and information the qui |
5 | tam plaintiff possesses shall be served on the Attorney |
6 | General. The complaint shall be filed in camera and shall |
7 | remain under seal for at least 60 days and shall not be |
8 | served on the defendant until the court orders the service. |
9 | The Commonwealth may elect to intervene and proceed with the |
10 | action within 60 days after it receives the complaint and the |
11 | material evidence and information. |
12 | (3) The Commonwealth may, for good cause shown, move the |
13 | court for extensions of the time during which the complaint |
14 | remains under seal under paragraph (2). The motions may be |
15 | supported by affidavits or other submissions in camera. The |
16 | defendant shall not be required to respond to any complaint |
17 | filed under this section until the complaint is unsealed and |
18 | served upon the defendant under the Pennsylvania Rules of |
19 | Civil Procedure. |
20 | (4) Before the expiration of the 60-day period or any |
21 | extensions obtained under paragraph (3), the Commonwealth |
22 | shall: |
23 | (i) proceed with the action, in which case the |
24 | action shall be conducted by the Commonwealth; or |
25 | (ii) notify the court it declines to take over the |
26 | action, in which case the person bringing the action |
27 | shall have the right to conduct the action. |
28 | (c) Intervention.--When a person brings a valid action under |
29 | this subsection, no person other than the Commonwealth may |
30 | intervene or bring a related action based on the facts |
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1 | underlying the pending action. |
2 | (d) Rights of the parties to qui tam actions.-- |
3 | (1) If the Commonwealth proceeds with the action, it |
4 | shall have the primary responsibility for prosecuting the |
5 | action and shall not be bound by an act of the person |
6 | bringing the action. The qui tam plaintiff shall have the |
7 | right to continue as a party to the action, subject to the |
8 | limitations set forth in paragraph (2). |
9 | (2) (i) The Commonwealth may move to dismiss the action |
10 | for good cause despite the objections of the qui tam |
11 | plaintiff if the qui tam plaintiff has been notified by |
12 | the Commonwealth of the filing of the motion and the |
13 | court has provided the qui tam plaintiff with an |
14 | opportunity to oppose the motion and present evidence at |
15 | a hearing. |
16 | (ii) The Commonwealth may settle the action with the |
17 | defendant despite the objections of the qui tam plaintiff |
18 | if the court determines, after a hearing providing the |
19 | qui tam plaintiff an opportunity to present evidence, the |
20 | proposed settlement is fair, adequate and reasonable |
21 | under the circumstances. |
22 | (iii) Upon a showing by the Commonwealth that |
23 | unrestricted participation during the course of the |
24 | litigation by the qui tam plaintiff would interfere with |
25 | or unduly delay the Commonwealth's prosecution of the |
26 | case or would be repetitious, irrelevant or harassment, |
27 | the court may, in its discretion, impose limitations on |
28 | the qui tam plaintiff's participation by: |
29 | (A) limiting the number of witnesses the person |
30 | may call; |
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1 | (B) limiting the length of the testimony of the |
2 | witnesses; |
3 | (C) limiting the qui tam plaintiff's cross- |
4 | examination of witnesses; or |
5 | (D) otherwise limiting the participation by the |
6 | person in the litigation. |
7 | (iv) Upon a showing by the defendant that |
8 | unrestricted participation during the litigation by the |
9 | qui tam plaintiff initiating the action would be for |
10 | purposes of harassment or would cause the defendant undue |
11 | burden or unnecessary expense, the court may limit the |
12 | participation by the qui tam plaintiff in the litigation. |
13 | (3) If the Commonwealth elects not to proceed with the |
14 | action, the qui tam plaintiff shall have the right to conduct |
15 | the action. If the Commonwealth requests, it shall be served |
16 | with copies of all pleadings filed in the action and shall be |
17 | supplied with copies of all deposition transcripts at the |
18 | Commonwealth's expense. When a person proceeds with the |
19 | action, the court, without limiting the status and rights of |
20 | the qui tam plaintiff, may permit the Commonwealth to |
21 | intervene at a later date upon a showing of good cause. |
22 | (4) Whether or not the Commonwealth proceeds with the |
23 | action, upon a showing by the Commonwealth that certain |
24 | actions of discovery by the qui tam plaintiff would interfere |
25 | with the Commonwealth's investigation or prosecution of a |
26 | criminal or civil matter arising out of the same facts, the |
27 | court may stay the discovery for a period of not more than 60 |
28 | days. The showing shall be conducted in camera. The court may |
29 | extend the 60-day period upon a further showing in camera |
30 | that the Commonwealth has pursued the criminal or civil |
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1 | investigation or proceedings with reasonable diligence and |
2 | the discovery proposed in the civil action will interfere |
3 | with the ongoing criminal or civil investigations or |
4 | proceedings. |
5 | (5) Notwithstanding subsection (b), the Commonwealth may |
6 | elect to pursue its claim through an alternate remedy |
7 | available to the Commonwealth, including an administrative |
8 | proceeding to determine a civil money penalty. If the |
9 | alternate remedy is pursued in another proceeding, the qui |
10 | tam plaintiff shall have the same rights in the proceeding as |
11 | if the action continued under this section. A finding of fact |
12 | or conclusion of law made in the other proceeding that has |
13 | become final shall be conclusive on all parties to an action |
14 | under this section. A finding or conclusion is final if it |
15 | has been finally determined on appeal to the appropriate |
16 | court of the Commonwealth, if the time for filing the appeal |
17 | regarding the finding or conclusion has expired or if the |
18 | finding or conclusion is not subject to judicial review. |
19 | (e) Award to qui tam plaintiff.-- |
20 | (1) If the Commonwealth proceeds with an action brought |
21 | by a qui tam plaintiff, the qui tam plaintiff shall, subject |
22 | to the provisions of this paragraph, receive at least 15% but |
23 | not more than 25% of the proceeds of the action or settlement |
24 | of the claim, including damages, civil penalties, payments |
25 | for costs of compliance and any other economic benefit |
26 | realized by the Commonwealth as a result of the action, |
27 | depending upon the extent to which either or both the person |
28 | and his counsel substantially contributed to the prosecution |
29 | of the action. Where the court finds the action is based |
30 | primarily on disclosures of specific information, other than |
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1 | information provided by the qui tam plaintiff, relating to |
2 | allegations or transactions specifically in a criminal, civil |
3 | or administrative hearing or in a legislative or |
4 | administrative report, hearing, audit or investigation or |
5 | from the news media, the court may award the sums as it |
6 | considers appropriate, but in no case more than 10% of the |
7 | proceeds, taking into account the significance of the |
8 | information and the role of the person bringing the action in |
9 | advancing the case to litigation. A payment to a person under |
10 | the first or second sentence of this paragraph shall be made |
11 | from the proceeds. The person shall also receive an amount |
12 | for reasonable expenses which the appropriate judge finds was |
13 | necessarily incurred, plus reasonable attorney fees and |
14 | costs. The expenses, fees and costs shall be awarded against |
15 | the defendant. |
16 | (2) If the Commonwealth does not proceed with an action |
17 | under this section, the qui tam plaintiff shall receive an |
18 | amount which the court decides is reasonable for collecting |
19 | the civil penalty and damages. The amount shall not be less |
20 | than 25% and not more than 30% of the proceeds of the action |
21 | or settlement and shall be paid out of the proceeds, which |
22 | includes damages, civil penalties, payments for costs of |
23 | compliance and any other economic benefit realized by the |
24 | government as a result of the action. The person shall also |
25 | receive an amount for reasonable expenses which the |
26 | appropriate Commonwealth court judge finds to have been |
27 | necessarily incurred, plus reasonable attorney fees and |
28 | costs. All the expenses, fees and costs shall be awarded |
29 | against the defendant. |
30 | (3) Whether or not the Commonwealth proceeds with the |
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1 | action, if the court finds the action was filed by a person |
2 | who planned and initiated the violation of section 301(a) |
3 | upon which the action was filed, then the court may, to the |
4 | extent the court considers appropriate, reduce the share of |
5 | the proceeds of the action which the person would otherwise |
6 | receive under paragraph (1) or (2), taking into account the |
7 | role of that person in advancing the case to litigation and |
8 | any relevant circumstances pertaining to the violation. If |
9 | the person bringing the action is convicted of criminal |
10 | conduct arising from his or her role in the violation of |
11 | section 301(a), that person shall be dismissed from the civil |
12 | action and shall not receive a share of the proceeds of the |
13 | action. The dismissal shall not prejudice the right of the |
14 | Commonwealth to continue the action. |
15 | (4) If the Commonwealth does not proceed with the action |
16 | and the person bringing the action conducts the action, the |
17 | court may award to the defendant its reasonable attorney fees |
18 | and expenses if the defendant prevails in the action and the |
19 | court finds the claim of the person bringing the action was |
20 | clearly frivolous, clearly vexatious or brought primarily for |
21 | purposes of harassment. |
22 | (f) Certain actions barred.-- |
23 | (1) No court shall have jurisdiction over an action |
24 | brought under subsection (b) against a member of the |
25 | legislative branch, a member of the judiciary or a senior |
26 | executive branch official if the action is based on evidence |
27 | or information known to the Commonwealth when the action was |
28 | brought. |
29 | (2) In no event may a person bring an action under |
30 | subsection (b) which is based upon allegations or |
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1 | transactions which are the subject of a civil suit or an |
2 | administrative civil penalty proceeding for money in which |
3 | the Commonwealth is already a party. |
4 | (3) Upon the motion of the Attorney General, the court |
5 | may, in consideration of all the equities, dismiss a relator |
6 | of the elements of the actionable false claims alleged in the |
7 | qui tam complaint which have been publicly disclosed, |
8 | specifically in the news media or in a publicly disseminated |
9 | governmental report, at the time the complaint is filed. |
10 | (g) Commonwealth not liable for certain expenses.--The |
11 | Commonwealth is not liable for expenses which a person incurs in |
12 | bringing an action under this section. |
13 | (h) Private action for retaliation action.--An employee, |
14 | contractor or agent who is discharged, demoted, suspended, |
15 | threatened, harassed or in any other manner discriminated |
16 | against in the terms and conditions of employment by the |
17 | employer because of lawful acts by the employee, contractor or |
18 | agent on behalf of the employee, contractor or agent or |
19 | associated others in furtherance of other efforts to stop one or |
20 | more violations of this act shall be entitled to all relief |
21 | necessary to make the employee whole. The relief shall include |
22 | reinstatement with the same seniority status the employee, |
23 | contractor or agent would have had but for the discrimination, |
24 | two times the amount of back pay, interest on the back pay and |
25 | compensation for any special damages sustained as a result of |
26 | the discrimination, including litigation costs and reasonable |
27 | attorney fees. An action under this subsection shall be brought |
28 | in an appropriate court of this Commonwealth for the relief |
29 | provided in this subsection. |
30 | (i) Civil investigative demand.-- |
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1 | (1) (i) The Attorney General or designee for the |
2 | purposes of this subsection shall have the authority to |
3 | issue civil investigative demands under paragraph (2). |
4 | (ii) Nothing in this subsection shall be construed |
5 | to limit the regulatory or investigative authority of any |
6 | department or agency of the Commonwealth whose functions |
7 | may relate to persons, enterprises or matters falling |
8 | within the scope of this chapter. |
9 | (2) (i) Whenever the Attorney General has reason to |
10 | believe that any person or enterprise may be in |
11 | possession, custody or control of documentary material |
12 | relevant to an investigation under this chapter, the |
13 | Attorney General may issue in writing, and cause to be |
14 | served upon the person or enterprise, a civil |
15 | investigative demand requiring the production of the |
16 | material for examination. |
17 | (ii) Each demand shall: |
18 | (A) state the nature of the conduct constituting |
19 | the alleged violation which is under investigation, |
20 | the applicable provision of law and the connection |
21 | between the documentary material demanded and the |
22 | conduct under investigation; |
23 | (B) describe the class or classes of documentary |
24 | material to be produced with sufficient definiteness |
25 | and certainty to permit the material to be fairly |
26 | identified; |
27 | (C) state the demand is returnable or prescribe |
28 | a return date which will provide a reasonable time |
29 | period within which the material demanded may be |
30 | assembled and made available for inspection and |
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1 | copying or reproduction; |
2 | (D) identify an investigator to whom the |
3 | material shall be made available; and |
4 | (E) contain the following statement printed |
5 | conspicuously at the top of the demand: "You have the |
6 | right to seek the assistance of an attorney and he |
7 | may represent you in all phases of the investigation |
8 | of which this civil investigative demand is a part." |
9 | (iii) The demand shall not: |
10 | (A) contain a requirement which would be held to |
11 | be unreasonable if contained in a subpoena duces |
12 | tecum issued by any court in connection with a grand |
13 | jury investigation of such alleged violation; or |
14 | (B) require the production of documentary |
15 | evidence which would be privileged from disclosure if |
16 | demanded by a subpoena duces tecum issued by a court |
17 | in connection with a grand jury investigation of the |
18 | alleged violation. |
19 | (iv) Service of any such demand or any petition |
20 | filed under this paragraph shall be made in the manner |
21 | prescribed by the Pennsylvania Rules of Civil Procedure |
22 | for service of writs and complaints. |
23 | (v) A verified return by the individual serving a |
24 | demand or petition setting forth the manner of the |
25 | service shall be prima facie proof of the service. In the |
26 | case of service by registered or certified mail, the |
27 | return shall be accompanied by the return post office |
28 | receipt of delivery of the demand. |
29 | (vi) (A) Any party upon whom any demand issued |
30 | under this subsection has been duly served shall make |
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1 | the material available for inspection and copying or |
2 | reproduction to the investigator designated at the |
3 | principal place of business of the party, or at the |
4 | other place as the investigator and party may agree |
5 | or as the court may direct under this paragraph, on |
6 | the return date specified in the demand. The party |
7 | may upon agreement of the investigator substitute |
8 | copies of all or any part of the material for the |
9 | originals. |
10 | (B) The investigator to whom documentary |
11 | material is delivered shall take physical possession |
12 | of it and shall be responsible for the use for which |
13 | it is made and for its return under this paragraph. |
14 | The investigator may cause the preparation of copies |
15 | of the documentary material as may be required for |
16 | official use. While in the possession of the |
17 | investigator, no material produced shall be available |
18 | for examination without the consent of the party who |
19 | produced the material by an individual other than the |
20 | Attorney General or investigator. Under reasonable |
21 | terms and conditions as the Attorney General shall |
22 | prescribe, documentary material while in the |
23 | possession of the investigator shall be available for |
24 | examination by the party who produced the material or |
25 | a duly authorized representative of the party. |
26 | (C) Upon completion of the investigation for |
27 | which documentary material was produced under this |
28 | paragraph and any case or proceeding arising from the |
29 | investigation, the investigator shall return to the |
30 | party who produced the material all the material |
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1 | other than copies made under this paragraph which |
2 | have not passed into the control of any court or |
3 | grand jury through introduction into the record of |
4 | the case or proceeding. |
5 | (D) When documentary material has been produced |
6 | by a party under this paragraph for use in an |
7 | investigation and no case or proceeding arising |
8 | therefrom has been instituted within a reasonable |
9 | time after completion of the examination and analysis |
10 | of all evidence assembled in the course of the |
11 | investigation, the party shall be entitled, upon |
12 | written demand made upon the Attorney General, to the |
13 | return of all documentary material, other than copies |
14 | made under this paragraph, produced by the party. |
15 | (vii) Whenever a person or enterprise fails to |
16 | comply with a civil investigative demand duly served upon |
17 | him under this paragraph or whenever satisfactory copying |
18 | or reproduction of the material cannot be done and the |
19 | party refuses to surrender the material, the Attorney |
20 | General may file, in the court of common pleas, for a |
21 | county in which the party resides or transacts business, |
22 | and serve upon the party a petition for an order of the |
23 | court for the enforcement of this paragraph, except that |
24 | if the person transacts business in more than one county |
25 | the petition shall be filed in the county in which the |
26 | party maintains its principal place of business. |
27 | (viii) Within 20 days after the service of the |
28 | demand upon a person or enterprise, or at any time before |
29 | the return date specified in the demand, whichever period |
30 | is shorter, the party may file, in the court of common |
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1 | pleas of the county within which the party resides or |
2 | transacts business, and serve upon the Attorney General a |
3 | petition for an order of the court modifying or setting |
4 | aside the demand. The time allowed for compliance with |
5 | the demand in whole or in part as deemed proper and |
6 | ordered by the court shall not run during the pendency of |
7 | the petition in the court. The petition shall specify |
8 | each ground upon which the petitioner relies in seeking |
9 | the relief, and may be based upon a failure of the demand |
10 | to comply with the provisions of this paragraph or upon a |
11 | constitutional or other legal right or privilege of the |
12 | party. |
13 | (ix) When the Attorney General is in custody or |
14 | control of documentary material delivered by a party in |
15 | compliance with a demand, the party may file, in the |
16 | court of common pleas of the county within which the |
17 | documentary material was delivered, and serve upon the |
18 | Attorney General a petition for an order of the court |
19 | requiring the performance of a duty imposed by this |
20 | paragraph. |
21 | (x) Whenever a petition is filed in a court of |
22 | common pleas under this paragraph, the court shall have |
23 | jurisdiction to hear and determine the matter so |
24 | presented, and, after a hearing at which all parties are |
25 | represented, to enter an order as may be required to |
26 | carry into effect the provisions of this paragraph. |
27 | (3) Whenever an individual refuses, on the basis of his |
28 | Fifth Amendment privilege against self-incrimination, to |
29 | comply with a civil investigative demand issued under |
30 | paragraph (2), the Attorney General may invoke the provisions |
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1 | of 42 Pa.C.S. § 5947 (relating to immunity of witnesses). |
2 | (j) Service on State or local authorities.--With respect to |
3 | a State or local government that is named as a coplaintiff with |
4 | the United States in an action brought under this act, a seal on |
5 | the action ordered by the court under section 302(b) shall not |
6 | preclude the United States or the person bringing the action |
7 | from serving the complaint, any other pleasings, or the written |
8 | disclosure of substantially all material evidence and |
9 | information possessed by the person bringing the action on the |
10 | law enforcement authorities that are authorized under the law of |
11 | this Commonwealth or local government to investigate and |
12 | prosecute the actions on behalf of the governments, except that |
13 | the seal applies to the law enforcement authorities served to |
14 | the same extent as the seal applies to other parties in the |
15 | action. |
16 | (k) Information sharing.--Information obtained by the |
17 | Attorney General or a designee of the Attorney General under |
18 | this subsection may be shared with a qui tam realtor if the |
19 | Attorney General or designee determines it is necessary as part |
20 | of an investigation under this act. |
21 | Section 303. Limitation of actions; prior activities; burden of |
22 | proof. |
23 | (a) Statute of limitations.--A civil action under section |
24 | 302 may not be brought more than ten years after the date on |
25 | which the violation was committed. |
26 | (b) Burden of proof.--In any action brought under section |
27 | 302, the Commonwealth or the qui tam plaintiff shall be required |
28 | to prove all essential elements of the cause of action, |
29 | including damages, by a preponderance of the evidence. |
30 | (c) Estoppel.--Notwithstanding any other provision of law, a |
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1 | guilty verdict rendered in a criminal proceeding charging false |
2 | statements or fraud, whether upon a verdict after trial or upon |
3 | a plea of guilty or nolo contendere, shall estop the defendant |
4 | from denying the essential elements of the offense in any action |
5 | which involves the same transaction as in the criminal |
6 | proceeding and which is brought under section 302(a) or (b). |
7 | (d) Intervention by the Commonwealth.--If the Commonwealth |
8 | elects to intervene and proceed with an action brought under |
9 | section 302(b), the Commonwealth may file its own complaint or |
10 | amend the complaint of a person who has brought an action under |
11 | section 302(b) to clarify or add detail to the claims in which |
12 | the Commonwealth is intervening and to add any additional claims |
13 | with respect to which the Commonwealth contends it is entitled |
14 | to relief. For statute of limitations purposes, any such |
15 | Commonwealth pleading shall relate back to the filing date of |
16 | the complaint of the person who originally brought the action, |
17 | to the extent that the claim of the Commonwealth arises out of |
18 | the conduct, transactions or occurrences set forth, or attempted |
19 | to be set forth, in the prior complaint of that person. |
20 | Section 304. Remedies under other laws; severability of |
21 | provisions; liberality of legislative construction. |
22 | (a) Remedies under other laws.--The provisions of this act |
23 | are not exclusive and the remedies provided for in this act |
24 | shall be in addition to any other remedies provided for in any |
25 | other law or available under common law. |
26 | (b) Liberality of legislative construction.--This chapter |
27 | shall be liberally construed and applied to promote the public |
28 | interest. |
29 | Section 305. Regulations. |
30 | (a) General rule.--The Attorney General shall have the power |
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1 | and authority to promulgate rules and regulations which may be |
2 | necessary to carry out the purposes set forth in this chapter. |
3 | (b) Guidelines.--In order to facilitate the speedy |
4 | implementation of this chapter, the Attorney General shall have |
5 | the power and authority to promulgate, adopt and use guidelines |
6 | which shall be published in the Pennsylvania Bulletin. The |
7 | guidelines shall not be subject to review under section 205 of |
8 | the act of July 31, 1968 (P.L.769, No.240), referred to as the |
9 | Commonwealth Documents Law; sections 204(b) and 301(10) of the |
10 | act of October 15, 1980 (P.L.950, No.164), known as the |
11 | Commonwealth Attorneys Act; or the act of June 25, 1982 |
12 | (P.L.633, No.181), known as the Regulatory Review Act. The |
13 | guidelines shall be effective for not more than two years from |
14 | the effective date of this chapter. After the expiration of the |
15 | two-year period, the guidelines shall be promulgated as |
16 | regulations. |
17 | CHAPTER 21 |
18 | MISCELLANEOUS PROVISIONS |
19 | Section 2101. Effective date. |
20 | This act shall take effect in 60 days. |
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