If you are considering filing a qui tam lawsuit, it is important to proceed carefully. A qui tam case under the False Claims Act is a serious legal matter that requires thoughtful decisions at every stage.
Understanding how to file a qui tam claim involves more than submitting paperwork. It includes choosing the right attorney, filing in the appropriate court, acting within strict time limits, and maintaining confidentiality throughout the process.
The following guidance reflects important considerations to keep in mind before filing.
1. Choose your whistleblower attorney carefully.
Anyone researching how to file a qui tam lawsuit should begin with experienced counsel. The False Claims Act is a complex federal law. Courts interpret its provisions differently, and a misunderstanding of the law can harm an otherwise strong case.
False Claims Act litigation can also be expensive. There are significant costs associated with filing, investigating allegations, consulting experts, and litigating a case. Make sure your attorney has the resources and staffing necessary to pursue a qui tam claim from beginning to end.
Consider whether:
- The attorney has substantial experience handling qui tam lawsuits
- The firm has multiple lawyers available to work on complex matters
- The firm intends to litigate the case directly rather than refer it out
- The attorney has experience working with government lawyers and investigators
When deciding how to file a qui tam claim, careful selection of counsel is one of the most important decisions you will make.
2. Understand who may qualify as a Qui Tam whistleblower and what legal protections apply
Before deciding how to file a qui tam lawsuit, it is important to understand whether you may qualify to bring a claim. In general, a private individual may file a qui tam claim if they have non-public information about fraud involving federal funds or programs. Relators are often current or former employees, contractors, or others with direct knowledge of the conduct at issue. Courts may limit claims brought by individuals who were deeply involved in the wrongdoing, and certain legal rules may affect whether a person qualifies to proceed. These issues should be evaluated carefully with experienced counsel.
The False Claims Act also contains an anti-retaliation provision. Employers are prohibited from retaliating against employees for lawful acts taken in furtherance of a qui tam action or efforts to stop violations of the law. If unlawful retaliation occurs, available remedies may include reinstatement, double back pay, and compensation for certain damages and attorneys’ fees. Anyone considering how to file a qui tam claim should discuss both eligibility and potential protections with an attorney before taking action.
3. Understand How a Qui Tam Lawsuit Is Filed
A key part of learning how to file a qui tam lawsuit is understanding the basic filing process. Qui tam cases may be filed under the federal False Claims Act or under applicable state false claims statutes, depending on the nature of the misconduct and the government funds involved.
At the beginning of the case:
- The complaint is filed under seal, meaning it is not publicly available
- The defendant is not immediately notified or served
- The government receives the complaint along with a written disclosure of substantially all material evidence and information supporting the allegations
Filing under seal allows the appropriate government authority, whether the United States Department of Justice or a state attorney general’s office, time to investigate before the case becomes public. Under the federal False Claims Act, the government has an initial 60-day period to decide whether to intervene in the case, although courts frequently grant extensions. State laws often contain similar procedures, though timelines and requirements may vary.
If the government intervenes, it assumes primary responsibility for prosecuting the action. If it declines, the whistleblower may proceed with the lawsuit, subject to the government’s continuing rights under the applicable statute. Because these procedural requirements are technical and can differ between federal and state claims, individuals considering filing a qui tam action should consult experienced counsel before taking any action.
4. Know which court would be best for filing your particular qui tam lawsuit.
A qui tam lawsuit may be filed in a number of jurisdictions. Various courts have interpreted key parts of the False Claims Act in different ways. These rulings should be taken into account when deciding where to file your qui tam lawsuit. The best forum for a particular qui tam lawsuit might be, for instance, the federal civil court closest to the defendant’s headquarters rather than one closest to the defendant’s facility.
Some U.S. attorneys have more experience investigating and pursuing certain types of qui tam lawsuits and more resources to do so than others do. Since the help and support of the federal government is generally essential for a successful case, whistleblowers and their counsel should consider the experience and the resources of the local U.S. attorney’s office when deciding where to file a lawsuit.
5. Once you have evidence of fraud, act quickly.
Timing is critical when evaluating how to file a qui tam claim. A qui tam lawsuit can be dismissed if it is not the first one to make the allegations. If another whistleblower files a case based on the same essential allegations first, a later-filed case may be dismissed.
The False Claims Act limits the time in which a lawsuit can be filed. Generally, lawsuits must be filed within six years of the date the fraud is committed, but under certain circumstances, they can be filed within 10 years. The provision governing time limits is complicated, and some otherwise promising cases have been dismissed because of a court’s interpretation of which time limit applies. Because these timing rules can be complicated, individuals considering how to file a qui tam lawsuit should consult an attorney as soon as possible.
6. Do not discuss your lawsuit with anyone except your lawyer.
Qui tam lawsuits are filed under seal, meaning they are not available to the public. The seal is not lifted until after the federal government investigates the charges contained in a lawsuit and decides whether to intervene, and the court orders the seal lifted.
Public discussion of your allegations may be harmful to your case. This includes posting any information about the case or your allegations to your Facebook or other social media page, blogging, or tweeting about it. Please be aware that your privacy settings do not guarantee that information posted anywhere on the internet will remain private. Anyone considering how to file a qui tam claim should avoid public disclosure and seek legal advice before discussing the matter with anyone other than counsel.
7. Understand the risks and potential outcomes of filing a Qui Tam lawsuit
Filing a qui tam lawsuit is a significant decision. Once a case is filed, it initiates a government investigation that the whistleblower cannot control and cannot withdraw unilaterally.
If the case results in a recovery for the United States, the False Claims Act provides that an eligible whistleblower may receive a percentage of that recovery. In general:
- If the government intervenes, the award ranges from 15 percent to 25 percent of the recovery
- If the government declines and the case proceeds successfully, the award ranges from 25 percent to 30 percent
The court determines the exact percentage based on the circumstances of the case. Before filing a qui tam lawsuit, be sure to discuss with your attorney both the pros and cons of becoming a whistleblower, as well as how strong your case is and how likely you are to win.
Speak With an Experienced Qui Tam Attorney at Phillips and Cohen
If you are considering how to file a qui tam claim, Phillips and Cohen has extensive experience representing whistleblowers under the False Claims Act.
Before taking any action, contact Phillips and Cohen for a confidential consultation. An experienced attorney can evaluate your situation, explain your options, and advise you on the appropriate next steps. You can also explore our resource of Whistleblower FAQs.