How Qui Tam Works Today
A qui tam relator (or plaintiff) files a complaint, under seal, in a U.S. District Court that has jurisdiction over the case. Along with the complaint, the relator must also file a “written disclosure of substantially all material evidence and information the person possesses.” The primary purpose for the written disclosure is to provide the government with enough information to properly investigate the claim in order to determine if it will intervene in the lawsuit.
The government’s role
The law states that, once a complaint and written disclosure are filed under seal, the Department of Justice (DOJ) has 60 days to investigate the information disclosed and determine what action, if any, to take. However, in reality, it often takes anywhere from a year to five years for the DOJ to make that determination while obtaining frequent extensions from the court. If a relator’s attorney wants, he or she can challenge extension requests, but that can also result in the DOJ declining to intervene because it did not have enough time to investigate. It is generally in the best interest of the relator for the government to intervene because of the resources the government can bring to the investigation and prosecution.
Once a complaint is filed, the DOJ will assign the case to an investigative agency that has jurisdiction over the allegations. During the period of time the complaint is under seal, government investigators and attorneys will conduct a preliminary investigation based on information disclosed by the relator. This usually includes a comprehensive interview of the relator and a review of the relator’s records. It will also include interview of any corroborative witnesses, review of appropriate government records, and interviews of government officials. The investigation can also be expanded to include obtaining and reviewing the records of the defendant through the subpoena process. Once the preliminary investigation is completed, the results are analyzed by the DOJ in order to determine whether it will join in the lawsuit.
While under seal, the DOJ has a number of options. It can elect to intervene in the lawsuit, attempt to settle the action prior to a formal investigation, decline to intervene, or move to dismiss the action altogether.
- Under the statute, if the DOJ elects to intervene in the lawsuit, it has the primary responsibility for prosecuting the case, controls the action, and can limit the relator’s participation during the case. Once the government has opted to intervene in the case, depending on the circumstances of the offense and the quality of evidence available from the relator, an attempt may be made to settle the action without a formal investigation or further court procedures; otherwise the case will continue to be prosecuted within the court system.
- If the DOJ declines to intervene, it pulls out of the investigation, but the relator may continue to investigate and prosecute the case.
- The DOJ can also dismiss the complaint, but in practice rarely dismisses a qui tam case outright as this would stifle any possibility for the complaint to be pursued; rather, if the government believes there is no merit to the complaint, or if limited resources or political considerations disfavor prosecution, DOJ generally allows the relator the option of continuing the case on his or her own.
Qui tam is a form of civil litigation; however, in most cases, the DOJ will involve civil and criminal resources from the U.S. Attorney’s office within the area where the case was filed. The U.S. Attorney may decide to open criminal proceedings based on the qui tam allegations. If so, the qui tam case will be stayed until the criminal investigation is complete.
While the government is investigating and deciding action, the case remains sealed.
If the Department of Justice (DOJ) intervenes in the case, it assumes control and determines the degree to which the relator will participate going forward.
If the DOJ declines to intervene, the relator has the right to investigate and prosecute the case on his or her own and has full discovery rights (court-approved access to contractor and government records and sworn testimony of witnesses) as provided under the Federal Rules of Civil Procedure. That said, the statute grants the government the right to intervene in the action at a later date if it is believed there is good reason to do so.
Provided the government does not join and the relator is successful in pursuing the case, the relator will generally receive a larger percentage of the award, up to 30 percent. If you believe that you have a part to play in exposing fraud against the federal government, you may need help protecting your rights and pursuing compensation.