Coordination with the Government:

Under the qui tam provisions of the False Claims Act, the Department of Justice (DoJ) and U.S. Attorney are served with the complaint and written disclosure statement when the action is initially filed under seal. The DoJ then has a period of time - at least 60 days, to conduct a preliminary investigation of the allegations to determine if the government should intervene. When a qui tam action is served on the DoJ and U.S. Attorney, coordination between those agencies and the relator's attorney normally begins. Some qui tam attorneys have established a good working relationship with U.S. Attorneys in their area that has helped them to better coordinate their cases even before the case is filed.

Establishing a good working relationship with the U.S. Attorney's office, where the case is filed, can help to facilitate a better understanding of your case and the best approach to investigating it if the DoJ delegates that responsibility to the U.S. Attorney. Although the DoJ has been delegating the investigative responsibility to the U.S. Attorney, it still directs many of the investigations. Be aware that when actions are filed, the DoJ, especially, has a tendency to negatively pre-judge your case. This pre-judged "attitude" on the part of DoJ has led to many good cases being poorly investigated and subsequently declined. It also has not been unusual for the DoJ and the relator's attorney to develop some animosity toward each other. This usually develops from a lack of understanding or distrust both may have toward each other.

Good coordination and establishing good lines of communications is necessary to better understand what the DoJ and government investigators are doing to your case. It is also important in establishing the attitude that both the government and the relator are partners in the action and therefore on the same side. Despite the fact the relator and government are on the same side, there have been instances where the government - the DoJ especially, has treated the relator and his or her attorney(s) with disdain and disrespect as if they were adversaries.

Also, establishing good coordination and a working relationship with the government investigators assigned to your case will be beneficial. Your ability to achieve that will depend on a number of factors including what agency is involved, the individual investigators assigned and the DoJ attorney assigned to the case. DoJ has the tendency to want to control all contacts between the relator's attorney and the government investigators and sometimes will outright direct that the investigators have no contact with either the relator or the relator's attorneys without going through the DoJ. This is usually not as much of a problem if the investigation is being coordinated through the U.S. Attorney's office. Again, it will depend on how successful you are at establishing a good relationship with the U.S. Attorney. There has been precedence established in some cases where the relator's attorney and investigators have worked well with the government investigators in pursuing the investigation, but it has been more the exception, not the rule.

The Government Investigation:

When a qui tam action is filed and served on the DoJ, they will forward copies of the complaint and disclosure statement to the governmental agency that DoJ determines has jurisdiction in the case, i.e. DoD, HHS, Transportation, NASA, Agriculture, etc. A decision is then made as to what government investigative agency or agencies will look into the matter. It is not unusual for two or more agencies to be involved in the investigation if it is multi-jurisdictional in nature. In addition, the DoJ will coordinate with the U.S. Attorney in whose district the case was filed. At this point, a preliminary assessment of the case is made based on the information in the complaint and disclosure statement to determine if the allegations are already known to the government or whether the allegations are already under investigation.

The civil division of the U.S. Attorney's office will usually coordinate the case with the criminal division with a view toward initiating a criminal investigation of the allegations if warranted. If a decision is made to conduct a criminal investigation - or there is one currently ongoing, the civil qui tam case is suspended until the criminal investigation - usually a Grand Jury investigation, is completed. If a criminal investigation is not initiated, or there is not one ongoing, then a preliminary investigation is conducted to determine the merits of the allegations and provide the DoJ with sufficient information to make an informed decision whether to intervene. It is usually not an easy chore, depending on the complexity of the allegations and the extent of the evidence presented by the relator, to make an informed decision about the merits of a case within the 60 days mandated by the law. Therefore, it is inevitable that the DoJ will request an extension of the 60 day seal period to permit it to complete its investigation. As stated previously, six months should be the limit, but no more than one year - six months to a year extensions should only be granted in very unusual situations with the DoJ being required to provide very good reasons for doing so. The court can require the DoJ to obtain an agreement by the relator for the extensions. However, the relator can also protest the extensions to the court. It should not take more than six months for the DoJ to investigate the merits of the allegations and determine whether to intervene. If it does, and many cases have gone on for two to three years under seal, then there is something very wrong and the court should put the DoJ on the hotseat and explain its actions.

Once the investigation has started, the normal first step for the government investigators is to conduct a comprehensive interview of the relator in order to go over the information in the complaint and disclosure statement and to obtain any additional information regarding the allegations. The investigators should take this opportunity to try and provide focus and direction to the investigation, especially if the allegations are very complex and involve multiple issues. This process should also include a thorough review of any documents the relator has provided to support the allegations. The interview should be done with the relator's attorney and/or its investigators present. Ask the government investigator or attorney ahead of time who specifically will be present during the interview. Sometimes the government investigator or attorney will want to bring government auditors and/or contract officials to sit in on the interview. Be aware if government contracting officials are going to be present because if there was fraud it happened on his or her watch. They are the government officials who may have acquiesced to the fraud and are most likely to be sympathetic to the defendant. Almost all government acquiescence problems in procurement fraud cases involve government contracting officials. Having a number of people involved in the interview should be more the exception than the rule. Experienced investigators will limit the number the people involved in an interview, It can be difficult to conduct a good interview, obtain important information, and establish a good rapport with the relator when there is a room full of people. Also, the more people present, the more chance that the information will leak to the defendant. This has happened in the past - especially with contracting officials involved who have some "loyalty" to the defendant. In some cases, the DoJ attorney will want to conduct the interview with the government investigator taking a subordinate role in the process. Unfortunately, experience is that when this happens, it is usually less productive because the DoJ attorneys involved are less informed of the complexities of the procurement system at issue than the government investigators.

Once the interview of the relator is completed, an investigative plan is normally prepared with a view toward obtaining enough information within the period of time provided under seal to permit the DoJ to determine whether to intervene. The investigation can take on many forms depending on the issues and the extent of the evidence presented by the relator. Generally, government investigators will interview any corroborative witnesses provided by the relator, interview government audit and contracting officials, and review documents in the possession of the government. In addition, certain trend and other types of analysis may be conducted of data in the possession of the government or a fiscal intermediary, and interviews will be done of any potential witnesses developed during the course of the investigation. Inquiries will also be made to determine the extent of government acquiescence and any other problems that could surface in the case. The extent of the investigation will depend on the amount of information that can be obtained without breaking the seal. Most government agencies will not serve a subpoena (such as an IG subpoena) on the defendant at this point because of the danger of breaking the seal and the amount of time it would take to obtain and review the documents. However, due to poor management, investigative inexperience, or a misguided bureaucracy, some agencies have gone ahead and served IG subpoenas (losing sight of the fact that the investigation is only "preliminary" in nature at this point and subject to a limited amount of time under seal) that has resulted in the "preliminary" investigation lasting two to three years under seal. Serving an IG subpoena during this stage should be discouraged. It should be done during a full scale investigation after the government intervenes and the seal period has ended.

Once the preliminary investigation is completed, a report is made to the DoJ who then makes a decision whether to intervene. The result of the investigation will depend on the quality of the allegations and evidence presented by the relator and the ability of the government investigators to focus the preliminary investigation and put together a good investigative plan to obtain enough quality information for the DoJ to make a fair decision.