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Government Intervention in False Claims Acts

The False Claims Act (FCA) is a congressional act that originally served to penalize persons who “knowingly submitted false claims to the government.” Over the years, lawmakers have amended the FCA several times to increase damages and add more severe penalties. People not affiliated with the government (“relators”) have the ability to file actions against those who commit this type of fraud, on behalf of the government. The law refers to this process as “whistleblowing,” or a qui tam action. The FCA suit can then proceed with or without government intervention. If you’re considering filing a claim under the FCA, seek legal counsel from Butler Wooten & Peak LLP. Whistleblower cases require professional representation.

The FCA Claims Process

The Department of Justice (DOJ) will only intervene in about one fourth of all whistleblower lawsuits. First, the DOJ will receive all or most of the information the person filing the claim has to support his/her claim. The Department then has 60 days to review the claim, unless it requests an extension. During this time, the DOJ will not share any information with the individual or entity facing allegations of making a false claim. For the most part, the DOJ will review the qui tam complaint and decline to intervene.

When the DOJ declines to intervene, the whistleblower and his/her attorney can continue the claims process. The whistleblower has the option to decide to proceed or dismiss the claim. The whistleblower, if he/she decides to continue, may then serve the qui tam complaint on the defendants. The DOJ, however, has the right to take any settlement or judgment award resulting from the case. Note that FCA cases require attorney representation – a whistleblower cannot self-represent in these claims. Confidentiality is key. The attorney must file the qui tam lawsuit under seal with the Clerk of Court to protect the whistleblower’s identity.

What to Expect When the DOJ Intervenes

The DOJ will investigate the defendant’s alleged illegal acts, possibly involving a number of government agencies such as the Federal Bureau of Investigation or the Postal Inspection Service. After the investigation, the DOJ may choose to intervene in the case. If the DOJ does decide to intervene, this automatically unseals the case. The government may then file its own complaint in addition to the whistleblower’s complaint. The DOJ can intervene in one, some, or all counts of the pending lawsuit. Intervention marks the government’s intention to become a plaintiff in the prosecution of the complaint.

Government intervention in FCA lawsuits is not something one should take lightly. Typically, the Department of Justice in Washington must approve case intervention after carefully considering the results of the investigation and relevant facts of the claim. The government will often try to settle a case prior to intervention if possible. The decision to intervene does not mean the government automatically agrees with the relator’s claims. It simply means it’s found a reason to take part in the claim. If the DOJ files its own complaint within 60 days of intervening, it will publish its own statement of facts and damages sought.

The DOJ may also file claims under other statutes or common law – two areas relators not related to the government do not have the right to file. The False Claims Act is the only one with a qui tam provision – barring relators from filing under statutes such as the Truth in Negotiation Act. The government may also move to dismiss the relator’s complaint instead of choosing to intervene or to stay out of the case. The DOJ might make this choice if an investigation shows that the claimant has no grounds for his/her claim, or if the case conflicts with significant interests of the country. Contact Butler Wooten & Peak LLP right away when dealing with a claim under the FCA.