How Qui Tam Works
Filing: A qui tam relator files a complaint, under seal, in a U.S. District Court that has jurisdiction over the case. Along with the complaint, the relator must also file a “written disclosure of substantially all material evidence and information the person possesses.” The primary purpose for the written disclosure is to provide the Government with enough information to properly investigate the claim in order to determine if it will intervene in the lawsuit.
Government Role after Filing: The law states that, once a complaint and written disclosure is filed under seal, the Department of Justice (DOJ) has 60 days to investigate the information disclosed and determine whether it will intervene in the lawsuit. However, in reality, it often takes anywhere from a year to five years for the DOJ to make that determination while getting frequent extensions from the court. If a relator’s attorney wants, he, or she, can challenge extension requests, but that can also result in the DOJ declining to intervene because it did not have enough time to investigate.
Once a complaint is filed, the DOJ will assign the case to an investigative agency that has jurisdiction over the allegations. During the period of time the complaint is under seal, the Government investigators and attorneys will conduct a preliminary investigation based on the information disclosed by the relator. This usually includes a comprehensive interview of the relator and review of relator’s records if any exists. It also will include interview of any corroborative witnesses, review of appropriate government records and interviews of government officials. The investigation can also be expanded to include obtaining and reviewing the records of the defendant through the subpoena process. Once the preliminary investigation is completed, the results are analyzed by the DOJ in order to determine whether it will join in the lawsuit.
While under seal, the DOJ has a number of options in making its decision. It can elect to intervene in the lawsuit, decline to intervene, move to dismiss the action, or attempt to settle the action prior to a formal investigation. Under the statute, if the DOJ elects to intervene in the lawsuit, it controls the action and has the primary responsibility for prosecuting the case. The DOJ, under the circumstances, can limit the relator’s participation during the case. If the DOJ declines to intervene, it pulls out of the investigation, but the relator is entitled to investigate and prosecute the case. The DOJ can also dismiss the complaint, but rarely does so. Instead, the DOJ will usually just decline to join if it feels there is no merit to the complaint, there is a lack of resources, or for political reasons, that allows the relator the option of continuing with the case on his or her own.
In most cases, the DOJ will involve civil and criminal resources from the U.S. Attorney’s office within the area where the case was filed. In some cases, the U.S. Attorney may decide to open a criminal investigation based on the qui tam allegations. If that occurs, the civil qui tam case will be stayed until the completion of the criminal investigation.
Relator’s Role if Government Declines: If the DOJ declines to intervene, the relator has the right to investigate and prosecute the case. However, the statute gives the Government the right to intervene in the action at a later date if it feels there is a good reason to do so. The relator, if pursuing the case, has full discovery rights (court approved access to contractor and government records and sworn testimony of witnesses) as provided under the Federal Rules of Civil Procedure. If the Government does not join and the relator is successful in pursuing the case, the relator, generally, will receive a larger percentage of the award.
Relator’s Share of the Award: The 1986 Amendment to the False Claims Act increased the relator’s share of the award in qui tam actions. Prior to 1986, relators were not guaranteed any more than 10 percent of the award. The 1986 Amendment raised the relator’s share to a minimum of 15 percent and a maximum of 25 percent if the DOJ intervenes, and a maximum of 30 percent if the DOJ declines and the relator takes on the case that ends in a settlement.
The size of the relator’s share of the award depends on several factors:
- If the Government joins, and successfully prosecutes the case, and the relator was not involved in the wrongdoing, the relator can receive between 15 and 25 percent depending on the extent of the relator’s contribution to the case.
- If the Government does not join and the relator successfully prosecutes the case, the relator will receive between 25 and 30 percent of the proceeds.
- If it is determined the relator was involved in the wrongdoing, the court can reduce the relator’s share at its discretion depending on the circumstances of the relator’s involvement. The court will dismiss a relator out of an action and deny receipt of any share of an award if the relator is convicted of criminal conduct arising from the wrongdoing alleged in the lawsuit.
In addition to receiving a percentage of the award, the False Claims Act also provides that the relator, if successful, will be reimbursed for expenses incurred, including attorneys fees and costs.
Contact us if you want to discuss your specific issues: