What If the Government Does Not Intervene?
If the Department of Justice declines to intervene, you may still proceed with the case yourself, and your share of any recovery rises from 15 to 25 percent up to 25 to 30 percent. Declination is often a resourcing decision rather than a judgment on the merits.
Declination is the normal outcome
The government intervenes in a minority of qui tam cases. Most relators receive a declination notice, and many are told by their counsel at that point that the case is over.
It is not over. The statute expressly permits the relator to conduct the action. What changes is who funds and litigates it.
Why the government declines cases it believes
The Department of Justice has finite civil fraud resources and a large qui tam docket. Declination frequently reflects capacity and portfolio choices rather than a conclusion that no fraud occurred.
- The projected recovery does not justify the investigative and litigation cost
- The theory is sound but novel, and the government prefers established ground
- A parallel criminal or administrative matter is taking priority
- The evidence needs development the government is not resourced to do
- The defendant is small or has limited ability to pay
What proceeding alone actually involves
The relator carries the litigation. Discovery, motions, experts, and trial preparation are funded by counsel on contingency. The government retains rights, including the ability to intervene later for good cause and to be consulted on settlement.
This is genuinely harder. It is also where the higher share applies, and where a defendant that expected the case to disappear discovers it has not.
Our result in a declined case
Our attorneys obtained a 9 million dollar settlement in a non-intervened False Claims Act case against a private equity firm, its principals, and its pharmacy portfolio companies, involving off-label dispensing of a fentanyl product billed to Medicare, Medicaid, and TRICARE.
The government did not join. The case was carried, litigated, and settled, and liability reached the owners personally. That result is the reason we treat a declination notice as a decision point rather than an ending.
The question to ask your lawyer before you file
Ask what happens if the government declines. Ask whether the firm has carried a declined case to recovery, and which one.
The answer tells you whether you are retaining counsel for the whole case or only for the part the government might do for free.
Frequently asked questions
Does declination mean my case is weak?
Not necessarily. It commonly reflects resourcing, timing, or novelty. Many substantial recoveries have come from declined cases, including our own 9 million dollar settlement.
What is my share if I proceed alone?
Between 25 and 30 percent of the recovery, compared with 15 to 25 percent when the government intervenes.
Can the government change its mind?
Yes. The government may intervene later upon a showing of good cause, and sometimes does when a declined case develops well.
Who pays the costs if we lose?
On a contingency arrangement the firm carries the costs. A defendant can seek fees against a relator only in narrow circumstances, essentially where the claim was clearly frivolous or brought for harassment.
The attorneys who handle these cases
Related reading
Talk to a whistleblower attorney before you report
A conversation costs nothing and is confidential. We will tell you honestly whether what you have describes a case, and what the first-to-file rule means for your timing.