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The preliminary investigation of the charges begins when a relator and his or her attorney examine the situation to see of a lawsuit is feasible. This likely represents the relator's heaviest involvement in the case, since it is the whistleblower who best knows the potential fraud, the company's operations, and the system through which the fraud filtered. After extensive investigation, the attorneys will write a legal complaint incorporating the relator's knowledge of fraud into a legal document to file with the courts. The Qui Tam law also requires that the relator file a written disclosure statement that lists all known relevant facts. These documents must accurately reflect the facts, as the relator understands them. After filing the complaint, a court seals the complaint, which means that the complaint is not served on the defendant. This is different from a normal suit, in which service on the defendant represents a prerequisite. The government then has sixty days to investigate the charges and decide whether or not to intervene in the case. The government usually asks the court and the relator for an extension and thus the seal could go on for over a year. The seal allows the government to investigate the company without its knowledge of a complaint against it, though often the information leaks to the company within a few months after an investigation begins. During the time of the seal, the government attorneys and investigators meet with the relator to go over the facts of the case. A relator should not meet with anyone without an attorney present, in order to protect both the relator and the integrity of the case. Because politics can affect the course a fraud case takes, particularly when the case implicates a large and powerful company, a whistleblower must first and foremost protect his or her interests and legal rights. If the government accepts a Qui Tam case the relator usually faces a deposition. In addition, the relator and his or her attorney should continue to monitor the progress of the case to ensure that the government does not take action detrimental to the relator. At times, the government has settled for five cents on the dollar to get a win or to alleviate political pressure from the company's lobbyists. A relator has a right to file a protest with the court if the proposed settlement appears too low. Such a motion requires a showing of factual reasons why the government should get more money. If the government declines the case, a relator can assess whether the case is worth investing the time and money and whether the government did anything that would compromise the viability of the case. If a relator decides to pursue a case, he or she will probably serve as a major witness at trial. The case, however, should not rest solely on the testimony of the relator. If the relator's attorneys and investigators have done their job, the case should extend to systemic fraud throughout the company, rather than being limited to the facts that the relator discovered while in the company's employ. Systemic fraud is usually present in companies that defraud the government, and thus expanding the case will return much more money to the government and increase a relator's recovery. When a relator takes a case to trial instead of settling, and wins a judgment, the relator should expect the defendant company to appeal the decision. The appeals process can become protracted and requires patients on the part of the relator. The best way to think about Qui Tam cases are as actions on behalf of the common good attempts to right a wrong committed against the country as a whole. The Qui Tam share of the recovery serves as an additional benefit. This perspective may help a relator maintain heart during what could become a long, difficult process in which it takes several years to ever see the defendant pay damages. |
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