The False Claims Act Government Intervention Issue

What happens if the Government does not support or "intervene” in my case?

If the Government declines to intervene in your qui tam case, you and your attorney need to assess if the case is worth investing the time and money required to sue the defendant. The Government has many reasons for not pursuing cases, many of them perfectly valid, some not so laudatory. Where the dollar amount of the fraud is less than $1 million, the Department of Justice normally will not take an active lead in the cases--absent some other special circumstances.

Your first step after being told of a non-intervention decision is to ask for an explanation, perhaps in a meeting with the Department of Justice or Assistant U.S. Attorney primarily responsible for recommending that the Government not intervene.  Occasionally, in such a meeting, you may be able to persuade the Government to review its initial decision.  Many times, once information is shared with you and your lawyer, you may come to the same conclusion as the Government--that the case should not be pursued.

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Where the Government does not intervene, do I have any other options besides dismissing or trial?

Yes. There is often an opportunity to settle your case at the time of the intervention decision by the Government. The Government may be of assistance--particularly if its non-intervention decision is not yet final or not fully disclosed to the defendant. Second, by settling while the case is still new, the defendant avoids the potential for lengthy, expensive, and contentious litigation or unpleasant media coverage, not to mention eliminating the possibility of losing the case.

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What kinds of cases are not pursued by the relator or should not be pursued?

There are a variety of cases that the Government declines to intervene in and which should likely not be pursued by the relator. For example, if the company has no financial assets or has many debts, you could win your case--but no money. Second, the Government agency involved may strenuously oppose the claims and may even testify in favor of the defendant. Such cases could be disastrous for the whistleblower.

Frequently, cases involve several million dollars of damages, but may require hundreds of thousands of dollars in expert witness fees, document copying expenses, or extensive motion practice, making them difficult to pursue efficiently and economically.  Health care cases could involve patient confidentiality issues, for example, making litigation quite complex.  

Some cases may simply be without merit or there may not be enough facts available to prove the claims, even though there was enough of a basis to file an action.

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How does a defendant react if the Department of Justice does not intervene?

Often, a defendant will misinterpret a non-intervention decision as the equivalent of a decision that your case is frivolous and without merit. While this is sometimes the case, normally it is not. Instead, most non-intervention decisions merely reflect the fact that there are a small number of Government lawyers who actually litigate False Claims Act cases.

Bolstered by a non-intervention decision, defendants may gear up their lawyers to mount a full-scale litigation attack upon you and your lawyers, with a barrage of depositions, discovery requests, and motions to the court--all of which have to be responded to by the relator. If this occurs, it is important that you be able to convince the opposing side that you are prepared to go forward with full-scale discovery, motion practice, and trial.

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