Justice News Flash: Featured Column : The Government's Investigation of a Sealed Qui Tam Complaint

The Government's Investigation of a Sealed Qui Tam Complaint

What must happen before the complaint is filed under the False Claims Act?

The Government's Investigation of a Sealed Qui Tam Complaint

// Justice News Flash: Featured Column // Kathleen Scanlan
The False Claims Act codifies an important public private partnership to fight fraud against the government. Before the complaint is filed, the relator and the relator's counsel investigate the allegations and determine whether to bring a case. Once the qui tam complaint is filed, however, the relator will be asked to defer to the government while it conducts its own investigation and ultimately decides the contours of that partnership. While the exact nature of the investigation is going to depend on the fraud alleged, there are some similarities to the seal period in every case.

By law, the complaint remains under seal for 60 days which begins to run only when the government is served with the complaint and the disclosure statement. Behind the seal, the DOJ and the US Attorney will begin to collect evidence to evaluate the relator's allegations. Initially, the Department of Justice and the local US Attorney may be looking to see if there are any other qui tam complaints or administrative investigations alleging similar conduct. The qui tam complaint is also evaluated by attorneys in the criminal division. While the False Claims Act is a civil statute, it is not uncommon for a whistleblower's information to trigger possible criminal charges. For example, many kickback schemes may include a criminal angle. Or, a doctor performing unnecessary surgeries on a patient may have potential criminal liability for assault. The seal period affords the government the time to prioritize how and what it wants to prosecute and enforce.

The government will also reach out to the government agency alleged to have been defrauded. It may collect documents and interview witnesses from the relevant agency to either confirm or deny the relator's allegations. In addition, the government is empowered with the ability to issue Civil Investigative Demands (CIDs) and subpoenas to the target defendant or third parties during the seal period. Finally, during this seal period, the government will meet with and interview the relator as often as necessary to obtain any and all additional information the relator may be able to provide. The relator may help in reviewing documents, or identifying witnesses. If the relator is still an employee at the target defendant, the relator may be asked to wear a wire to assist in collecting evidence. Again, the exact parameters of the relator's assistance will depend on the nature of the case at issue and the ability of relator's counsel to aid the government in the task at hand.

Not surprisingly, the government often times cannot complete this multi-prong investigation in 60 days. Sometimes these investigations can take a year or more. When that happens the government seeks extensions of the seal period from the court. By the time the seal is lifted the government has a much fuller view of the relator's allegations than even the relator had in filing the initial complaint. Thus, the seal period serves as time where the parameters of the public private partnership contemplated by the statute are developed in each case – whether the government will join the relator and intervene in the case or whether it will allow the relator to proceed without the government.


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