If the government declines to intervene
If the government declines to intervene in your case it means the DoJ has decided your case has no merit and it is suspending its involvement in the matter. But, it does not necessarily mean the case is over. In most cases, the DoJ will not actually dismiss the case in court leaving open the possibility for the relator to pursue the matter on its own. The relator can continue the prosecution of the case in U.S. District Court, but must serve the defendant within a specified period of time.
However, to continue the prosecution of the case will require a lot of resources, both attorneys and money, in order to take the case through the courts and take on a company or corporation that may have even more resources. Also, it is common for cases that the relator takes on after the government declines to last more than 10 years before there is a resolution. When taking the case on after declination, you and your attorney will be acting on behalf of the federal government and will get subpoena power to request documents, the ability to argue motions in court on behalf of the case, the ability to take depositions, including the depositions of corporate managers and executives, negotiate a settlement (which must be approved by the government) and take the case through trial. Usually private attorneys are free of political restraints and have more incentive to show that the fraud is systemic and get a larger settlement or recovery. However, in this instance, the DoJ monitors the case and can intervene at any stage and can move to dismiss the case if so wishes.
If a declination does occur, you and your attorney need to make an assessment to see if the case is worth investing the time and money to go forward. What often happens if the decision is made to go forward, is your attorney will partner with other law firms to help with the litigation and spread out the costs. Your attorney team should seek out former government procurement or health claims experts to do an evaluation of the case. This will give you and your attorney a better idea on the possibility of success. Also, they need to set up a good legal, investigative and expert team and be prepared to slog your way through mounds of documents and motions. Often the company will think that your case is weak because the government did not intervene and will try to obfuscate and delay until your attorney runs low on resources. It is important for you and your attorney to make it be known to the defense counsel and the company that you are ready to go the distance and are prepared to go to trial.
You will probably be a major witness at a trial if that occurs, but if your attorneys and investigators have done their job, your case should go beyond your narrow knowledge and have found systemic fraud throughout the company. This is usually the case in companies that defraud the government and expanding the case will return much more money to the government and increase your recovery.
If you take the case to trial instead of settling and you win a judgment, don’t expect to pick up your recovery check the next day. Expect the company to appeal the decision. Hopefully your attorney will know good appeal attorneys to assist him or her though the appeal process and has the resources to go through the process. Your involvement will be minimal except that you will have to learn to be patient. If you are lucky, the government and you will finally receive a recovery.
As you can see, a qui tam case is not a quick road to riches for a whistleblower and you will work for any money that you do get. It would be destructive to you to go into a qui tam case desperately needing the money because there are no guarantees that you will receive anything and it could be years before you get an actual check. The best way to think about these cases is that you are righting a wrong and that the recovery is just icing on the cake. Otherwise, the long process could be a miserable one for you.
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