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Giantkillers By Henry Scammell Atlantic Monthly Press, 306 pages, $25 Since the emergence of the nonfiction novel in the 1960s, some of the genre’s best work has been set in a legal context. Jonathan Harr’s “A Civil Action” is perhaps the most recent noteworthy example. With his painstaking reconstruction of an environmental dispute in Massachusetts, Harr managed to convey fully the case’s complexity and the character of the major participants. In “Giantkillers,” an account of several cases brought under the False Claims Act, Henry Scammell had a similar opportunity. Under the act, citizens are authorized to assert claims on behalf of the United States that companies providing goods and services to the federal government have attempted to defraud the government. Thus, in addition to the drama inherent in an individual’s making significant allegations of fraud against his employer, there are potential collateral conflicts as a result of the actions taken by other interested parties — notably the relevant federal agencies — in response to the whistleblower’s claims. However, Scammell did not take advantage of this opportunity, and instead settled for half a loaf. His account of each case is an updated version of David’s battle against Goliath. Scammell details the whistleblower’s discovery of the fraudulent activity and inability to persuade the company to change its ways, describes the ensuing litigation over the whistleblower’s claims, and concludes with a calculation of the amounts paid by the company to settle the case and awarded to the whistleblower. At every step Scammell tells the story from the perspective of the whistleblower and his attorney. This is not to question Scammell’s accuracy. He covers some of the most successful claims ever brought, including the cases brought against the Columbia/HCA HealthCare Corp. for Medicare fraud, which resulted in $1.7 billion in payments by the company to the federal government. The individuals who brought those cases unquestionably displayed courage and fortitude in daring to come forward and maintaining their claims. Nonetheless, even Scammell’s account suggests that a more nuanced — and thus even more dramatic — account of the cases would have been possible. For example, Scammell devotes two chapters to Michael Lissack’s campaign against Wall Street over the practice of “yield burning,” a complicated practice through which investment bankers overcharged municipalities for Treasury securities in refinancing transactions. Lissack worked for Smith Barney during the 1980s and 1990s, and subsequently was involved in a number of cases against his former employer and other investment banks. The strain he experienced as a result of his knowledge of Smith Barney’s fraudulent conduct, and his subsequent claims against his employer and the other banks, was quite severe. While still at Smith Barney, Lissack and his wife divorced, and, according to Fortune magazine, he also attempted suicide. Yet Scammell refers only briefly to the suicide attempt (noting only that “on a business trip to San Francisco, [Lissack] found himself contemplating suicide”) and similarly downplays an incident in which Lissack, after being fired from Smith Barney, harassed the firm by posting on the Internet a request that readers send his former boss — described as an 8-year-old boy with a fatal kidney disease — teddy bears. Scammell also notes Lissack was sanctioned for admitting his own role in the fraudulent activities he disclosed. When truth is at least as strange as fiction, the author can afford to be generous with the details. Moreover, Lissack’s adversaries could have cited the incidents of his personal troubles in an effort to attack his credibility. Did they? Scammell doesn’t say, as his account of the litigation is fairly brief. Ultimately, he notes, federal and state governments recovered more than $200 million in proceeds related to yield-burning claims. Lissack recovered a “multimillion-dollar reward,” part of which he used to endow an academic chair in social responsibility and personal ethics at Williams College, his alma mater. Scammell also provides a fairly generic account of the government’s conduct in the cases. When a private citizen brings a case under the False Claims Act, the DOJ must decide whether to intervene. (In the yield-burning cases, for example, the Manhattan U.S. Attorney’s Office declined to join any of the cases against the investment banks.) Furthermore, even if the Justice Department does intervene and the case resolves in favor of the claimant, the government nonetheless may disagree with the claimant on the amount that should be awarded to the claimant. Under the act, a successful claimant is entitled to a percentage of the proceeds, though there is some discretion in determining the exact amount. Scammell does not conceal his disappointment with the DOJ when it disagrees with the claimants in the cases he describes. A more complete account would have explored institutional and other factors — such as limited resources, competing demands as a result of the need for the services and goods provided by the companies sued under the False Claims Act, experience with frivolous claims, and the complexity of the federal programs involved — that could have more fully explained the department’s actions. It seems petty to fault Scammell for celebrating the heroism of individuals who had the integrity to challenge their companies’ fraudulent activities. On the back of the review copy of “Giantkillers,” he promises to tell a story “[c]harged with intrigue and courtroom drama” and to describe “in novelistic detail” how the False Claims Act was “revitalized” and used to change “the face of corporate America.” After “A Civil Action,” David McClintick’s “Indecent Exposure,” and Kurt Eichenwald’s “The Informant,” I came to “Giantkillers” with high expectations. Scammell did not fully meet them, but he nonetheless has provided a solid account of several prominent cases under the False Claims Act. That account is worth reviewing no matter how much one knows about the act. Rodger D. Citron is an attorney in Washington, D.C. From 1996 through 2000 he was a trial attorney at the Department of Justice.

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