Go your own way, if you must, but in whistleblower cases, it’s better to have a partner, especially when that partner is the Department of Justice. Under the whistleblower, or qui tam, provisions of the False Claims Act, citizens may sue on behalf of the government, and if they do, they stand to collect anywhere from 15-30% of the recovery. That can translate into many millions of dollars, as we’ve explained here before, but a lot depends on whether the government decides to join your lawsuit in a process called intervention. That’s because the lawsuit is initially filed under seal and served only on the government, not the defendant, until the government can review it and decide what to do.
If the government intervenes in your case, you’re not only on the right track but, often, the fast track to resolving the case favorably and for dollar values that dwarf the value of settlements when the government doesn’t intervene.
But that’s not always the case. Last summer, for example, saw a big settlement of $124 million in a case in which the government had declined to intervene. Of that, the primary whistleblower in the case will receive over $17 million. It is reportedly the largest settlement to date in a non-intervention case. The settlement resolved allegations that a major pharmacy company paid kickbacks by swapping below-cost discounts on Medicare Part A business for referrals to Medicare Part D and Medicaid business.
Besides, the government usually doesn’t decide quickly and, sometimes, it doesn’t decide at all, agreeing to unseal the case but deferring its decision whether to intervene. That may encourage whistleblowers to push their cases along in discovery in the hope of eventually persuading the government to take over.
Still, going your own way can be risky. Just last month, one whistleblower whose case was declined by the government and then dismissed by the court suffered another blow: he was ordered to pay over $10,000 in litigation costs to the other side.
That might feel like a lonely day.