Whistleblower cases can be unique, because the whistleblower is not always the person who ordinarily would be in a position to sue. In many cases, the government is the “real party in interest,” meaning the government will bring the claim and collect the settlement or verdict value. If the government declines to take a case, the whistleblower may be able to pursue a claim independently.
If you have a whistleblower case, you should contact an attorney as soon as possible. Whether the government takes the case or you pursue it yourself, understanding how the real party in interest impacts a whistleblower claim could be essential to success. Call today to discuss your case with a qualified whistleblower lawyer in Washington DC.
Whistleblower’s Role in a Qui Tam Claim
While the whistleblower does have an independent right of action and can bring a case to a court, under the False Claims Act the so-called real party in interest is the government. That right is handled through the procedures set out in the law, one of which is having to file the case under seal so the government can investigate the allegations made by the plaintiff confidentially. The government then has the discretion to investigate the claims and determine if it wants to take over the prosecution of the case. The word used to describe that is “intervention.”
The government can take over all of the case, or it can take over part of the case. It can take over the case against some defendants. It can take over the case for some claims, but until the government makes a decision like that, the plaintiff essentially works with the government to try and help them determine how substantial the allegations are, help them to prove that the allegations are real, and convince the government to take over the case and pursue it.
Independently Pursuing a Case
The plaintiff has the right to pursue the case when the government declines to do that. At that point, the case would come out of seal and the plaintiff would have the same procedural rights as in most litigation. They would help serve the complaint on the defendant and begin initial litigation, but the statistics are very clear on this. Like it or not, if the government decides to intervene in the case, the plaintiff’s chances of success and the case’s chances of success are far greater.
There has been some controversy in the last few years with the Department of Justice noting that it has the right to dismiss cases over the objection of the plaintiff as the real party in interest in whistleblower cases. That has always been in the law, but it has not been a right used very often by the Department of Justice.
What if the Government Declines a Case?
There have been some recent cases holding that the government has to demonstrate that it truly investigated all the allegations. If they are going to take that position, one could argue that the government’s assertion of the right to dismiss the case when it is not meritorious may in some way be helpful to relators, because that means if the government declines the case but does not dismiss it, the court should not.
This has always been the law, but this new assertion may put more emphasis on that point that a declination is not a decision on the merits of the case. The government may have many reasons to decline a case and a plaintiff may go forward. Despite all of that, statistics on the success rate of cases show that when the government decides to attempt to settle a case or prosecute a case, the plaintiff is in a far stronger position to succeed.
The other area that it is important to remember about the relator’s rights is that the relator only obtains a share of whatever the government collects. There are a lot of fancy numbers running around with respect to the size of False Claims Act cases because they are usually very large cases, but the relator’s right of an amount to collect is derivative of the government’s collection. Relators need to keep that in mind with respect to what their actual rights are.
Discuss How the Real Party in Interest Impacts a Whistleblower Case with an Attorney
If you are a whistleblower involved in a qui tam case, you should consult with an attorney as soon as possible. A steadfast DC lawyer could explain how the real party in interest impacts your whistleblower claim, and they could provide advice about your legal options. Call today to get started.