Whistleblower Litigation

Even when DOJ decides it will not intervene in a whistleblower’s case and litigate under the False Claims Act, the whistleblower (aka “relator” in False Claims Act speak) still may move forward with the case. Feldesman attorneys help clients to navigate the unique intricacies in this area including additional potential defenses, historical precedents, the government’s right to join in the case at a later date, and impact of the relator’s potential increased entitlement to a share of the proceeds.

A relator who proceeds with non-intervened litigation brings the case on behalf of the government, as the “real party in interest,” even though the government is not acting as direct party to the case in day-to-day federal court proceedings. The term qui tam is shorthand for a latin phrase “qui tam pro domino rege quam pro se ispo in hac parte sequitur,” which means “he who sues in this matter for the king as well as for himself.” In other words, while the relator is the one actively litigating the action, the matter is still brought on behalf of the government’s interests and, should it prove successful, to the government’s benefit. And the government retains significant rights in the litigation, such as dismissal and settlement authority, and the ability to join the case at a later point on a showing of good cause.

While a relator in a non-intervened FCA case must meet the same elements as the government in an intervened matter, a number of unique defenses are available in so-called non-intervened FCA litigation. For example, has there been a public disclosure of the relator’s allegations prior to the complaint? If so, is the relator an original source, as defined by the statute? If not, the relator will be prohibited from bringing his or her action. Similarly, the FCA contains a “first-to-file” rule, meaning that if another relator had previously brought the alleged fraud to the government’s attention through a qui tam filing, the current relator may not proceed with his or her action.

Additionally, the government retains the right to dismiss a relator’s litigation, even over his or her objection. This technique—authorized by 31 U.S.C. § 3730(c)(2)(A)—has been employed more and more of late, following January 2018 DOJ guidance encouraging Department attorneys to analyze and consider dismissal when appropriate. While a circuit split exists regarding the standard of review applicable to the DOJ’s decision to dismiss, under both standards (Sequoia and Swift), DOJ is given significant deference. To date, very few DOJ dismissals have ever been denied by a court.