THE DEVIL MADE ME DO IT?: WHAT FLOYD LANDIS’S
FALSE CLAIMS CASE AGAINST LANCE ARMSTRONG
SHOWS US ABOUT WHISTLEBLOWERS WHO
“PLANNED AND INITIATED” A FRAUD
In t r o d u c t i o n
ANCE Armstrong is a cheater. Following a worldwide broadcast in
January 2013,*1 no one can doubt the accuracy of that statement any
longer. In an interview with Oprah Winfrey, Armstrong openly admitted that he
used performance-enhancing drugs and blood doping to help win his seven Tour
de France titles.2 As a result of the interview and various investigations into his
conduct, Lance Armstrong was stripped of his cycling victories and lost many of
his sponsorship agreements.3 Additionally, one month after the interview with
Winfrey, the United States government intervened in a False Claims Act45case
that had been filed against Armstrong by former teammate Floyd Landis.’ The
suit alleged that during the time Armstrong rode on the United States Postal
Service Pro-Cycling Team (“U.S. Postal Service Team”), he and several others
filed false claims to the United States government for payment of sponsorship
monies.6 The media and the legal world both noticed the suit.
* J.D. candidate 2015, University of Toledo College of Law. I would like to thank my
advisor, Professor Geoffrey Rapp, for sharing his expertise, suggestions, and editorial advice
throughout the research and writing process. Additionally, 1 would like to thank my wife, Molly,
for her encouragement and patience during the entire process.
1. Oprah and Lance Armstrong: The Worldwide Exclusive (Oprah Winfrey Network
television broadcast Jan. 17, 2013).
3. Reed Albergotti & Vanessa O’Connell, Armstrong Seeks Dismissal o f Federal
Whistleblower Suit, W all St . J. (July 23, 2013, 11:10 PM), http://online.wsj.com/article/
SB 10001424127887324328904578624563537684642.html (“Mr. Armstrong, who was stripped of
his seven Tour de France titles last year, admitted in January that he used performance-enhancing
drugs to win the races. He lost all of his major sponsorship deals and is banned for life from
4. 31 U.S.C. §§ 3729-33 (2012).
5. Press Release, U.S. Dep’t of Justice, United States Joins Lawsuit Alleging Lance
Armstrong and Others Caused the Submission of False Claims to the U.S. Postal Service (Feb. 22,
2013), http://www.justice.gov/opa/pr/2013/February/13-civ-224.html. See also Landis v. Tailwind
Sports Corp., No. 10-cv-00976-RLW (D.D.C. June 10, 2010).
6. Complaint at 10, United States ex rel. Landis v. Tailwind Sports Corp., No. lO-cv-00976RLW (D.D.C. June 10, 2010) [hereinafter Landis Complaint]; United States Complaint at 1, United
UNIVERSITY OF TOLEDO LA WREVIEW
Landis, the “whistleblower” who initiated the lawsuit against Armstrong
and several others connected to the U.S. Postal Service Team,7 has a story of his
own. Landis had intimate knowledge of the cycling team’s blood-doping
program because he had actively participated in the program with his
teammates.8 Landis himself was stripped of his 2006 Tour de France victory
after the discovery that he had used performance-enhancing drugs.9 Prior to
filing the whistleblower lawsuit on behalf of the government, Landis sent
detailed emails to professional cycling bodies Union Cycliste Internationale
(UCI) and USA Cycling, outlining exactly how the cheating had occurred and
implicating those who had participated.10
On June 10, 2010, Landis, on behalf of the United States, filed a qui tarn"
lawsuit against Armstrong and others connected to the U.S. Postal Service
Team.12 Under the provisions of the False Claims Act (“FCA”),13 Landis, as a
private individual (known as a “relator”),14 could bring a lawsuit on the
government’s behalf.1'^ He would be entitled to pursue the case on his own, or it
could be joined by the government,16 as it eventually was.17 Even with the
government’s intervention, Landis is entitled to between 15% and 25% of any
proceeds that result from the lawsuit (including through a settlement).18 The
heart of Landis’s allegations was consistent with the claims he had made in
emails sent to cycling authorities.'9 Landis asserted that Armstrong, the company
that owned the team, the team’s manager and some of its investors had
knowingly submitted false claims to the United States government.20
According to the terms of the FCA, Landis’ suit was filed under seal.21
Ordinarily, that would mean that the suit would remain hidden from public view
(and from the defendants) until after the government had decided whether or not
to intervene.22 Yet, Landis did not remain silent. In July 2010, the Wall Street
States ex ret. Landis v. Tailwind Sports Corp., No. lO-cv-00976 (D.D.C. Apr. 23, 2013)
[hereinafter United States Complaint],
7. Landis Complaint, supra note 6, at 3; 31 U.S.C. § 3730(b)(1).
8. David W alsh, Seven D eadly S ins: M y Pursuit of Lance A rmstrong 356-63 (2012).
9. U.S. Anti-Doping Agency v. Landis, Am. Arbitration Ass’n North American Court for
Arbitration of Sport, No. 30 190 00847 06, at 83 (Sept. 20, 2007).
10. Walsh, supra note 8, at 356-63.
11. B lack’s Law D ictionary 1368 (9th ed. 2009) (defining “qui tam action” as “Latin qui
tarn pro domino rege quam pro se ipso in hac parte sequitur ‘who as well for the king as for
himself sues in this matter’”).
12. Landis Complaint, supra note 6, at 3-6; 31 U.S.C. § 3730(b)(1).
13. 31 U.S.C. § 3730(2012).
14. James B. Helmer, Jr., How Great Is Thy Bounty: Relator’s Share Calculations Pursuant to
the False Claims Act, 68 U. ClN. L. R ev. 737, 738 (2000).
15. 31 U.S.C. § 3730(b)(1).
16. Id. § 3730(b)(l)-(2).
17. Press Release, U.S. Dep’t of Justice, supra note 5.
18. 31 U.S.C. § 3730(d)(1).
19. See generally Landis Complaint, supra note 6; 31 U.S.C. § 3730(b)(1) (2012).
20. Landis Complaint, supra note 6, at 10; 31 U.S.C. § 3730(b)(1).
21. 31 U.S.C. 3730(b)(2).
WHISTLEBLOWING AND FALSE CLAIMS
Journal published an article based on extensive interviews with Landis.23 The
article claimed that the U.S. Postal Service Team's cyclists, including Armstrong
and Landis, had systematically doped.24 Landis’s information was the “tipping
point” in the public relations case against Armstrong.25 The Journal story came
at a time when many thought Lance Armstrong would never admit to or be
convicted of doping.2’
In February 2013, almost three years after Landis fded his original
lawsuit,2 the United States government intervened in the case.28 The statutory
provisions of 31 U.S.C. § 3730 provide the government with the opportunity to
intervene in a case brought by a qui tam plaintiff.29 Once the government
intervenes, it assumes primary responsibility for carrying the action forward.'0
Landis is now only a party to the action, limiting his role in litigating the case
against Armstrong and the other defendants.’1 Fie presents a valuable resource
for the government and will likely be called to testify based on his intimate
knowledge of what happened on the U.S. Postal Service Team.32
The lawsuit could lead to a significant recovery for the government. From
1998 to 2004, the United States Postal Service (“USPS”) paid its professional
cycling team approximately $40 million in sponsorship payments." Though the
sponsorship was not without its critics, '4 the team performed extremely well, as
Lance Armstrong won the Tour de France six consecutive times while he rode
for the team." The government now argues that USPS did not receive the
benefits for which it bargained under the terms of the contract,36 and that
Armstrong and his associates repeatedly lied to authorities regarding the use of
performance-enhancing drugs, resulting in the cyclists’ unjust enrichment.37
23. Reed Albergotti & Vanessa O’Connell. Blood Brothers, Wall St . J., July 2, 2010, at W l,
available at http://online.wsj.eom/news/articles/SB100014240527487049117045753267532005
25. Walsh, supra note 8, at 354.
26. Id. at 363-64.
27. Landis Complaint, supra note 6, at 1.
28. Press Release, U.S. Dep’t of Justice, supra note 5.
29. 31 U.S.C. § 3730(b)(2) (2012).
30. Id. § 3730(c)(1).
32. Thomas Peele, Headstrong, C al. Law ., July 2013, at 20, available at
33. United States Complaint, supra note 6, at 2.
34. Ira Teinowitz, Exclusive: Post Office Won't Deliverfor Armstrong, A dver. Age (Mar. 22,
2004), http://adage.com/article/news/exclusive-post-office-deliver-armstrong/98065 (noting that
Rick Merritt, executive director of PostalWatch, called the sponsorship “an egregious waste of
taxpayer money that provides no value”).
35. Press Release, U.S. Dep’t of Justice, supra note 5.
36. United States Complaint, supra note 6, at 2.
UNIVERSITY OF TOLEDO LAW REVIEW
Under the treble damages provisions of the FCA, the defendants could have to
pay up to $120 million.'8
The eventual resolution of the case is uncertain49—perhaps there will be a
settlement, perhaps a trial, and the government could still voluntarily decide to
seek dismissal of the case.40 Regardless of the outcome, one important issue is
the consequences for Landis of his own involvement in the cycling team’s doping
program.4 Landis doped. He doped a lot.42 Landis’s extensive doping and other
involvement in the doping program could lead to Landis being revealed as just as
responsible as Armstrong for the cycling team’s wrongdoing.4’ One might
dismiss, on a moral level, the impact of Landis’s participation by pointing to the
broad policy behind the FCA, which is to expose fraud against the government
and catch wrongdoers.44 But Landis’s involvement could have a dramatic effect
on how large a share, if any, he enjoys of the government’s eventual recovery.
Under 31 U.S.C. § 3730(d)(3) (“Section (d)(3)”), a court can exercise its
discretion to reduce a relator’s share of the recovery where the relator “planned
and initiated” the wrongdoing which led to the lawsuit.43 This comment
addresses not whether the government will succeed in its action against
Armstrong, but rather, if it does succeed, what is (or is not) in it for Floyd Landis.
Given Landis’s own wrongdoing, FCA precedent remains unclear on what
share he would enjoy.46 This comment uses United States ex rel. Landis v.
Tailwind Sports Corp 41 to examine the impact of a relator’s own wrongdoing on
qui tam litigation. The comment also suggests the need for revisions relating to
the existing statutory application so that reduction outcomes under the statute are
more clearly and fairly indicated.
Part II of this comment examines the history of the False Claims Act as
well as the specific history and amendments of 31 U.S.C. § 3730(d)(3). Part III
38. See id. See also 31 U.S.C. § 3729(a)(1)(G) (2012) (stating that the civil damages can be
39. Although Federal Circuit Court Judge Robert L. Wilkins dismissed claims against many of
the named parties in June 2014, several of the claims against Armstrong have not been dismissed.
United States ex rel. Landis v. Tailwind Sports Corp., 10-cv-00976, 2014 WL 2772907, at *38
(D.D.C. June 19, 2014).
40. See 31 U.S.C. § 3730(c)(l)-(2)(B).
41. See id. § 3730(d)(3) (noting that an individual who plans and initiates the wrongdoing
reported can have his award reduced).
42. Landis Complaint, supra note 6, at 15-18; Albergotti & O’Connell, supra note 23.
43. Peele, supra note 32 (“Landis is ‘not a perfect witness’— more like the wheelman in a
drive-by killing who flips on the shooter. Defense counsel could portray him ‘as an opportunistic
whistle-blower who is no different from Armstrong.’”).
44. Ben Depoorter & Jef De Mot, Whistle Blowing: An Economic Analysis o f the False Claims
Act, 14 Sup . C t . E con. R ev. 135,138 (2006).
45. 31 U.S.C. § 3730(d)(3).
46. Landis has entered into a deferred prosecution agreement with the Government. However,
this does not guarantee that any criminal liability will arise. Accordingly, the analysis will identify
recovery factors separate from criminal conviction. United States ex rel. Landis v. Tailwind Sports
Corp., 10-CV-00976, 2015 WL 602114, at *3 (D.D.C. Feb. 12,2015).
47. See generally United States ex rel. Landis v. Tailwind Sports Corp., No. lO-cv-00976
(D.D.C. June 10, 2010).
WHISTLEBLOWING AND FALSE CLAIMS
analyzes how current case law precedent pertaining to 31 U.S.C. § 3730(d)(3)
provides no clear guidance for courts deciding a relator’s recovery under the
False Claims Act. Part IV considers the outcome of the Floyd Landis case in
light of current case law precedent with an emphasis on the shortcomings of
current statutory application. Part V examines “whistleblower” statutes from
other areas of the law, and suggests that other bounty programs provide more
concrete guidance for determining recovery amounts for relators personally
involved in the wrongdoing. Part VI concludes with a determination of the
significance of the case for future FCA litigants.
I. T h e F a l s e C l a im s A c t
H is t o r y
3 1 U.S.C. § 3730(d)(3)
False Claims Act and Qui Tam Provision
Codified at 31 U.S.C. §§ 3729-3733, the FCA allows the government to
subject those who make false claims for payment to the government to civil
liability.4S In addition to statutory penalties, the Act provides for treble
damages.49 The FCA was first enacted during the Civil War by President
Abraham Lincoln in an attempt to curb the activities of perfidious government
contractors,'’0 and is commonly referred to as “Lincoln’s Law.”51 However, the
Act was not used effectively or regularly until significant amendments were
enacted in 1986. " The Act as it exists today is a product of the extensive 1986
overhaul directed at encouraging “whistleblowers” to report fraud to the
A group of senators, including sponsor Senator Charles Grassley, proposed
the 1986 amendments’4 in the midst of concerns about fraudulent practices by
defense contractors during the Cold War military buildup.55 The senators argued
that amendments were necessary to help modernize the False Claims Act and add
to the effectiveness of its provisions.’6 To encourage whistleblowers to come
forward with information about fraud, Grassley and others argued that financial
48. 31 U.S.C. § 3729(a) (2012).
49. Id. § 3729(a)(1)(G).
50. Helmer, supra note 14, at 738. See also United States ex rel. LaValley v. First Nat’l Bank
of Bos., 707 F. Supp. 1351, 1354 (D. Mass. 1988).
51. Christopher L. Martin, Jr., Reining in Lincoln’s Law: A Call to Limit the Implied
Certification Theory o f Liability Under the False Claims Act, 101 C alif. L. Rev . 227, 229 (2013).
52. John T. Boese, C ivil False C laims and Q ui T am Actions 1-5 (4th ed. 2013).
53. Roberts v. Accenture, LLP, 707 F.3d 1011, 1018 (8th Cir. 2013) (internal citation omitted).
It should be noted that the Department of Justice has not always had respect for whistleblowers.
See, e.g., Gravitt v. Gen. Elec. Co., 680 F. Supp. 1162, 1164 (S.D. Ohio 1988) (noting that the
Department of Justice treated a whistleblower with little respect and disregarded his contributions
to a case).
54. 134 C ong . R ec. S 16697-01 (daily ed. Oct. 18, 1988).
55. Geoffrey Christopher Rapp, Four Signal Moments in Whistleblower Law: 1983-2013, 30
Hofstra Lab. & E mp. L.J. 389, 392 (2013).
56. S. Rep. N o . 99-345, at 2 (1985), reprinted in 1986 U.S.C.C.A.N. 5266, 5266.
UNIVERSITY OF TOLEDO LA W REVIEW
incentives were essential."7 Whistleblower bounties and immunity from liability
for their own participation might serve as the “price the government must pay to
prosecute its prime target.”58 Under this theory, proponents of change to the qui
tam provisions sought a guaranteed share for a relator of between 15% and 30%
of the government’s recovery in successful lawsuits.59 This range would apply
even if the recovery was extremely large.60 Prior to the amendments, relators
were not promised any minimum recovery and were only allowed to recover a
maximum of 10%.6i The incentives to blow the whistle before the 1986
amendments were dulled by the possibility that relators would expose themselves
to retaliation without a meaningful prospect of a financial reward.62
The 1986 Amendments to the FCA proved to be extremely successful— at
least in stimulating use of the statute’s qui tam provision. The amendments
furthered the government’s “twin goals of rejecting suits which the government
is capable of pursuing itself, while promoting those which the government is not
equipped to bring on its own.”63 The amendments also led to increased litigation
under the statute.64 Many have attributed the increased success of the lawsuits as
directly correlating to the increased incentives to relators.65
Major Fraud Act o f 1988 and the Addition o f 31 U.S.C. § 3730(d)(3)
Despite the major success of litigation under the FCA, following the 1986
amendments, critics complained that relators who played a central role in
defrauding the government could recover bounties, in effect profiting from their
own wrongdoing.66 Two years after the 1986 amendments, the Major Fraud Act
of 1988 added the modern version of Section (d)(3)67 to address those concerns.68
The Major Fraud Act of 1988 made two important changes pertaining to relators.
First, the Act enabled courts to exercise discretion in reducing the award of any
relator who “planned and initiated” the wrongdoing that was the basis of the
57. P eter B. Hutt, II & A nna R. Dolinsky, U.S. C hamber Inst, for L egal Reform,
Preventing Government O verpayments to Q ui T am Plaintiffs: Proposed A mendments to
the False Claims Act 1,2 (2011).
58. Depoorter & De Mot, supra note 44, at 138.
59. Hutt & Dolinsky, supra note 57, at 2.
61. Boese, supra: note 52, at 4-268.
63. United States ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 651 (D.C. Cir.
1994). This goal is also furthered by the public disclosure bar, which prohibits relators from
bringing suits based on information that has already been publicly disclosed, unless the relator is
the “original source” of the information. See 31 U.S.C. § 3730(e)(4)(A)-(B) (2012).
64. H utt & Dolinsky, supra note 57, at 5.
66. Boese, supra note 52, at 4-278. See also 134 C ong. R ec. H I0637-02 (daily ed. Oct. 20,
1988) (statement of Rep. Berman).
67. Major Fraud Act of 1988, sec. 9, § 3730(d)(3), 102 Stat. 4631 (1988).
68. Boese, supra note 52, at 4-278; Major Fraud Act of 1988, sec. 9, § 3730(d)(3).
WHISTLEBLOWING AND FALSE CLAIMS
lawsuit.1’4 Second, the Act required that any relator who was criminally
convicted of conduct related to the action be automatically dismissed from the
lawsuit.70 Such a relator is not entitled to any award regardless of the outcome of
The key phrase in Section (d)(3) is “planned and initiated.”72 The
legislative history of the Major Fraud Act of 1988 suggests that the statutory
language should only apply where the “qui tarn plaintiff was a principal architect
of a scheme to defraud the Government.”73 Under such a provision those who
were not a “driving force”74 or who played a lesser role in the false claim scheme
would not be liable.73 Indeed, more than 20 years after the addition of the
language, the original sponsors and subsequent supporters of the revisions
continue to champion the view that “the individuals who both originated,
introduced or started the scheme and also designed, drafted and arranged the
scheme” should be the only category of culpable relators.76 While this reading is
advocated as extremely effective, the position neither establishes practical
guidelines or criteria for evaluating when the relator achieves principal archit ...
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