When a whistleblower files an action under the False Claims Act (FCA), the government may elect to intervene and take primary responsibility for prosecuting the action. 31 U.S.C. § 3730(b)(2) and (c)(1). Government intervention provides significant advantages during the litigation process. Over 95% of all FCA cases where the government intervenes are successful, while only 5% succeed if the government elects not to intervene.
After intervention, the whistleblower has the full weight of the Department of Justice (DOJ) on their side. The cost of the litigation is largely shouldered by the government, not the whistleblower. But see § 3730(f) (stating that the government is not liable for the whistleblower’s expenses). Importantly, the DOJ can fund and carry out a pretrial investigation that far exceeds any that could be conducted by the whistleblower alone, building a stronger case and boosting the likelihood of recovery.
While intervention is obviously preferable, the whistleblower does give up some control. Many litigation decisions, like whether to settle, dismiss, or go to trial, will largely be controlled by the government.
Unlike other civil actions, a whistleblower cannot unilaterally decide to accept a settlement offer from the Defendant. The decision to settle is entirely up to the government. § 3730(c)(2)(B). The government may even agree to settle the case over the objection of the whistleblower. Id. However, whistleblowers are not wholly unprotected from insufficient settlement amounts. The amount of the settlement must be deemed by the court as “fair, adequate, and reasonable under all the circumstances.” Id.
Similarly, the government has the authority to dismiss the action after intervention, over the objections of the whistleblower. § 3730(c)(2)(A). However, the whistleblower is entitled to a hearing prior to dismissal. Id. Such a dismissal is rare and likely the result of a serious flaw in the case as a whole.
If the matter eventually goes to trial, the whistleblower may call and cross-examine their own witnesses. See § 3730(c)(2)(C). However, this right is also subject to restrictions. If the government shows that the whistleblower’s involvement would interfere or delay the proceedings, the court may limit the scope of the whistleblower’s involvement at trial. Id.
While intervention divests the whistleblower of control, it is still the ideal route through litigation and provides significantly more benefit than burden.