Filing a Qui Tam Lawsuit

An Overview of the Process

The qui tam provisions of the False Claims Act allow private citizens to help the federal government hold government contractors, healthcare providers, and other entities accountable for fraud, waste, and abuse (FWA). By filing qui tam lawsuits, private citizens can notify the government of FWA under federal contracts, grants, and programs, and they can assist the government with recovering taxpayer funds obtained by these entities through unlawful means.

Whistleblowers who file qui tam complaints (who are known as “relators”) can also receive a percentage of any amount the government recovers. This is usually between 15 percent and 30 percent of the government’s recovery—and this can amount to hundreds of thousands, if not millions, of dollars in many cases.

What to Expect When You File a Qui Tam Lawsuit

If you are thinking about blowing the whistle under the False Claims Act, it will be important for you to know what you can expect if you decide to move forward. With this in mind, here is an overview of the process of filing qui tam lawsuits:

1. Determining Whether You Qualify as a Qui Tam Relator

The first step in the process is to determine whether you qualify as a qui tam relator. Anyone who has information about a violation of the False Claims Act can potentially serve as a relator, provided that they meet a few basic requirements:

• Generally, a relator must not have been an active participant in the fraud, waste, or abuse that the relator is reporting (though there are some exceptions); 
• The prospective relator must not serve in a position in which he or she is required to report fraud, waste, or abuse; and, 
• The prospective relator must be the first to come forward with the information in the relator’s possession (this is known as the “original information” requirement). 

Current employees, former employees, contractors, subcontractors, competitors, and others can all serve as qui tam relators. The False Claims Act covers all forms of fraud, waste, and abuse affecting government contracts, grants, and programs—including over-billing, double billing, and phantom billing, among many others. The False Claims Act (FCA) also allows qui tam actions against the entities that defrauded the government through other means, and these entities can be forced to defend against a wide range of other allegations in response to qui tam cases.

2. Notifying the Government of Your Intentions

While formally initiating a qui tam suit involves filing a complaint in court (as we discuss below), it will often make sense for prospective relators to notify the government of their intentions. Typically, this means making contact with the appropriate U.S. Attorney’s Office within the U.S. Department of Justice (DOJ). By taking this step, prospective relators can confirm that their submissions will be treated as “original information,” which means that they will both: (i) receive protection against retaliation as a whistleblower; and, (ii) be eligible to receive a qui tam whistleblower award. 

3. Filing Your Qui Tam Lawsuit in Court

Formally initiating a qui tam lawsuit involves filing a complaint in federal district court. Qui tam whistleblowers must ensure that they file their complaint in the appropriate court, and they must ensure that their complaint meets all applicable substantive and procedural requirements. This is one of several reasons why it is important to work with an experienced whistleblower lawyer from the outset of the process.

Qui tam lawsuits filed under the False Claims Act are protected “under seal.” This means that relators’ identities and the content of their lawsuits are only known to the United States government. As a result, in all cases, the relator’s identity is initially kept confidential, and the government will assist with preserving the relator’s confidentiality to the fullest extent possible. 

4. Serving Copies of Your Qui Tam Lawsuit on the Government

When a relator files a qui tam lawsuit in federal district court, the relator must also serve copies of the lawsuit on the federal government. As the DOJ explains, relators must “serve a copy of the complaint and a ‘written disclosure of substantially all material evidence and information’ possessed by the relator on both the Attorney General and the United States Attorney (USA) pursuant to . . . Rule 4 of the Federal Rules of Civil Procedure.”

Ensuring adequate disclosure of “substantially all material evidence and information” is a key step for preserving relators’ protected status, and it is a step that relators must take while working in close coordination with their lawyers. An experienced qui tam attorney will be able to determine what evidence and information to disclose and assist with submitting this evidence and information in a manner and format that are useful and efficient for the government.  

5. Assisting with the Government’s Investigation

After initiating the process, you will need to assist with the government’s investigation. As the DOJ also explains, “[t]he government has 60 days from the date service is completed and the statement of material evidence is submitted, whichever is late[r], to notify the court of its decision,” on intervention. However, the government may ask the court for additional time based on “good cause shown.”

During this period, it will be important for you to provide adequate assistance to the extent that you can. Your qui tam attorney will be able to assist with this as well. The more assistance you can provide, the greater the chances will be that the government will decide to intervene and pursue a recovery under the False Claims Act. 

6. Ensuring that Your Qui Tam Lawsuit Remains Under Seal

When a qui tam action is filed, lawsuits initially remain under seal for 60 days. However, you have the ability to extend the amount of time that your lawsuit remains under seal by filing a motion with the court. While it may not be possible to protect your identity as a qui tam relator indefinitely, it is usually possible to maintain confidentiality over an extended period of time. 

Also, keep in mind that regardless of whether your identity as a qui tam relator eventually becomes public record, you are entitled to protection against retaliation. If you file a complaint against your employer and your employer attempts to retaliate against you, you will be entitled to clear remedies under federal law. This is true even if your employer claims to have a valid reason for taking adverse employment action that is nothing more than a pretext for retaliation.

7. Waiting for the Government’s Decision on Intervention

While you will be actively involved in the government’s investigation, there will also be a wait-and-see aspect to this stage of the process. Specifically, there will come a point at which you are waiting to find out if the government is going to intervene.

If the government decides to intervene, it will pursue your lawsuit directly. If it declines to intervene, you will have the option to pursue your lawsuit independently. You will be entitled to a percentage of the government’s recovery in either scenario, but your percentage will be greater if the government declines to intervene and you decide to pursue your qui tam lawsuit on your own.

8. Moving Forward with Qui Tam Litigation

Moving forward with qui tam litigation in either scenario involves going through the various stages of the federal litigation process. If the government intervenes, your role may be fairly minimal—though you will want to remain available to provide additional information and assistance as needed. If the government declines to intervene and you decide to pursue your lawsuit independently, you will need to play a much more active role, although your qui tam attorney will handle the substantial majority of the process on your behalf.

9. Continuing to Play an Active Role

When you are deciding whether to blow the whistle, it is important to understand that serving as a federal whistleblower involves much more than simply submitting information to the government. The government will expect you to remain an active participant throughout the process; and, the more assistance you provide, the greater the percentage of the government’s recovery you will be entitled to receive. 

10. Securing Your Qui Tam Relator Award if the Case is Successful

If your qui tam law suit results in the recovery of taxpayer funds, you may be entitled to a sizeable qui tam relator award. Securing your award will be the final stage in the process. If necessary, your lawyer can work with the DOJ on your behalf to determine the appropriate amount of your award based on the extent of your assistance, and your attorney can assist with collecting your award from the government. 

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

Talk to a Federal Whistleblower Attorney

If you are thinking about filing a qui tam lawsuit under the False Claims Act, we strongly encourage you to contact us for more information. When you do, we will arrange for you to speak with one of our senior federal whistleblower attorneys in strict confidence as soon as possible. To arrange a free consultation at Oberheiden P.C., please call 888-680-1745 or contact us confidentially online today.