July 5, 2019
Government intervention, when the government takes over a case, is the key factor for success of a whistleblower case. Under the SEC, CFTC, and IRS, programs a case can only go forward with the government. Qui tam laws like the False Claims Act, allow whistleblowers to litigate without the government. But government intervention is still vital.
Recovery in intervened cases dwarfs that in declined cases. In 2018, the government recovered nearly $2 billion dollars in intervened cases and less than $120 million in declined cases. So ask yourself, do you want your case to be in the blue bar or the yellow?
Intervened cases do better for several reasons.
The government can choose which cases to take and often picks cases already likely to succeed. The government also brings robust resources. These include expert prosecutors, agency specialists, and access to relevant records. Defendants know they will face these resources and often choose to settle cases when the government gets involved.
Declined cases face several special difficulties. Potent defenses including the first-to-file and public disclosure bars, are available to defendants in declined cases. Judges often view declined cases as weak or ones that the government does not care about. We believe this is wrong. The False Claims Act was designed to enlist private lawyers to help fight fraud. If the government believes that a False Claims Act case lacks merit, it can dismiss the case. The simple fact is that there is far more fraud than the government can pursue. The government declines cases for many reasons, often for lack of resources. But some judges remain unfairly hostile to declined cases.
The government intervenes in only about 20% of cases. So how do you and your lawyers position your case for success?
It begins with finding the right lawyers. Look for firms that specialize in whistleblower cases and avoid those who lack deep background. Make sure a firm has a track record of success throughout the country. Whistleblower cases may be brought in any state. You want lawyers with the background to know where to file your case to give it the best chance.
Good lawyers position a case for government intervention from the beginning. The lawyers at Whistleblower Law Collaborative have decades of experience as prosecutors and have a deep knowledge in this area. This often means we highlight facts important to the government even if not required for the claim.
For example, a statement is material if it has a natural tendency to affect a decision. False statements must be material under the False Claims Act. But busy government lawyers don’t intervene in every case with material false statements. Rather, they focus on cases with “plus” factors like patient harm or damage to important policy goals. Smart lawyers emphasize the plus factors in a case, not just the legal elements.
We have written before about factors that make a good case. Good whistleblower lawyers use these factors to give a case the best chance of government intervention.