Legal Memorandum: Government Intervention in FCA Cases

Issue: What are the implications raised by the intervention of the United States in a False Claims Act (FCA), or qui tam, claim?

Given limited resources and the very large volume of False Claims Act (FCA) filings, the government intervenes in only about 20% of FCA cases, and the relator’s counsel must devote considerable effort to work against those odds with advocacy on multiple levels—law, facts, equities, resources, and policy—any one of which can channel the case into the 80% declination pile.  Where the government does intervene, successful resolution is typically assured, and often, as here, is contemporaneous.  Where the Government declines to intervene, the odds and amount of any potential recovery immediately plummet for a variety of reasons.*FN1

The Supreme Court’s decision in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000) and subsequent cases applying the holding in Stevens have been used to find that the Government lacks statutory authority to pay a share of proceeds to a qui tam plaintiff in an action where the sole defendant is a state entity.

FOOTNOTES

*FN1See David Freeman Engstrom, Harnessing the Private Attorney General:  Evidence from Qui Tam Litigation, 112 Colum. L. Rev. 1244, 1275 n.108 (2012) TA l "Engstrom, David Freeman Harnessing the Private Attorney General:  Evidence from Qui Tam Litigation, 112 Colum. L. Rev. 1244, 1275 n.108 (2012)" s "David Freeman Engstrom, Harnessing the Private Attorney General:  Evidence from Qui Tam Litigation, 112 Colum. L. Rev. 1244, 1275 n.108 (2012)" c 3  (noting that “nearly all cases the DOJ […]