How the Process Works

Below is a brief description of how qui tam cases generally proceed from the investigative stage through litigation.

CONTENTS

Finding Counsel
Investigation by Counsel
Complaint and Written Disclosure
Procedure for Filing and Service
Initial Investigation by Government
Partial Lift of Seal
Government Decision on Intervention

Finding Counsel

Finding a capable, experienced attorney to help you with your claim is an important first step. The False Claims Act area of law is particularly complex. Key factors are whether the attorney has substantial experience in working under the False Claims Act and whether they have a track record of success. See Selecting an Attorney for other important considerations.

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Investigation by Counsel

When you are consulting counsel about a potential claim, you will likely be asked a series of questions about the substance of your allegations. You may also be asked for copies of documents in your possession that support your claim. This initial phase may take some time as the attorney evaluates your case. But due consideration must always be given to timing. If someone else files first, that may well foreclose your claim. Statutes of limitations may also be an issue.

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Complaint and Written Disclosure

After your attorney has completed investigating the case, the attorney will prepare a complaint and written disclosure statement. The complaint will generally contain precise allegations of the alleged wrongdoing. The written disclosure statement will generally include the material facts known to the relator, documentary evidence, and the names of individuals who may be knowledgeable about the allegations in the complaint.

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Procedure for Filing and Service

The complaint is filed under seal in federal court, which means that the complaint is not disclosed to the defendant or the public. The complaint is only initially served, along with the written disclosure statement, on the U.S. Department of Justice.  Only later, once the action is unsealed, is the complaint served upon the defendant(s).

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Initial Investigation by Government

The False Claims Act gives the Government 60 days after service to investigate and decide whether it will intervene in (i.e., take over lead prosecution of) the case. As a matter of practice, however, the United States almost always requests extensions of the 60-day seal period to make its intervention decision. Cases are often kept under seal for months and even years through this process. During the seal period, the Government investigates the relator’s allegations, by taking steps such as reviewing the relator’s evidence, interviewing the relator, requesting additional information from the relator, communicating with relevant agency officials, interviewing relevant non-government witnesses, informally gathering documents and evidence from government and non-government sources, and subpoenaing documents from the defendant.

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Partial Lift of Seal

Once the Government has conducted a preliminary evaluation of the case, if it concludes the allegations potentially have merit, in some cases the Government may request permission from the court to lift the seal partially in the case, so that it can share the relator’s allegations with the defendant. Through this process, the Government learns the defendant’s response to the allegations, without having to serve the complaint on the defendant and while leaving the case otherwise under seal. If the defendant does not provide a satisfactory explanation for its conduct, the Government may then potentially explore the possibility of settlement with the defendant, while the case remains under seal.

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Government Decision on Intervention

Once the Government has concluded its investigation, if it has not already reached a resolution of the matter with the defendant, it must decide whether to intervene in the case (i.e., take over lead prosecution of all or part of the case). If the Government does intervene, then the Government and the whistleblower litigate the case together thereafter as a team, with the Government serving as lead counsel. If the Government declines to intervene, the whistleblower has the option of pursuing the case without the assistance of the Government.

Historically, the Government has declined to intervene in more than three-quarters of the cases that have been filed, yet the vast majority of recoveries in qui tam cases (about 95%) have come from those cases in which the United States has intervened. Persuading the Government to intervene in a case is thus generally an important step forward in a case.

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Next section:  Selecting an Attorney