Filing the Qui Tam Lawsuit
A qui tam lawsuit is initiated when the complaint is filed under seal with a U.S. District Court. A copy of the complaint and a written disclosure statement of the evidence and information are also served on both the U.S. Attorney and the DoJ. The complaint is not served on the defendant during the seal period.
The qui tam law states that the complaint is filed under seal for an initial period of 60 days. In reality, this time period is unrealistic. Unless there is some technical problem that is immediately fatal to the case, the DoJ, in almost all cases, will ask the court for an extension of the 60-day period to allow it more time to investigate the allegations. This can add a couple of years to your case. Be aware that when the DoJ keeps a case under seal for that length of time and then decides not to intervene, it can be left in a state of disarray that makes it very difficult to reconstruct if you decide to litigate the action on your own. However, the length of time for the DOJ to investigate will depend on resources, the complexity of the charges, and length of time to obtain documentary evidence.
Maintaining the integrity of the seal is important in a qui tam action. There have been cases dismissed by the courts for violation of the seal provisions because of disclosures made to the media or to the defendant. Violation of the seal provision that results in a premature disclosure to the defendant could thwart the government investigation and prevent it from obtaining important evidence that could determine whether they would intervene and subsequently prove your case.
In addition to the complaint, a relator must also file a written disclosure statement under seal that, according to 31 U.S.C. §3730(b)(2), contains “substantially all material evidence and information the person possesses.” There is no hard and fast rule on how the disclosure statement is written, but the primary reason for this document is to provide the DoJ with the information necessary to conduct a proper investigation that will enable it to make a determination whether to intervene.
As a result of various court decisions, the disclosure statement can be discoverable. However, the relator is not required to provide all its evidence to the government as long as sufficient information is provided that will allow the government to properly investigate and make an informed decision. The disclosure statement also does not have to be filed simultaneously with the complaint. However, for all practical purposes, it is better to file the disclosure statement simultaneously or within a short period of time after the complaint is filed. If you decide not to file the disclosure statement simultaneously with the complaint, it would be wise to notify the DoJ or U.S. Attorney of your intentions.
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