Unlike most lawsuits, where the plaintiff needs to focus on what the judge and/or jury will think about the case, a qui tam case should focus at first on impressing and convincing the government attorneys and investigators. Because the success of a qui tam case depends so much on whether the government thinks the case has merit and is important enough to be worth spending limited resources investigating, the initial complaint and “disclosure” must be as comprehensive and detailed as possible. Your qui tam attorney will work with you to review all of your documents and information and distill them into an understandable form, focusing on the most incriminating, or “hot,” evidence. Again, it is important for the whistleblower to give the attorney all the documentation and information he or she has, and let the attorney decide what is more or less important. All of this preparation is also important to get you ready for your initial meeting with the government.
Your qui tam attorney will evaluate what legal claims under you can make in your lawsuit based on the evidence you provide. You may be able to make claims under federal, state and/or local law. Depending on the circumstances of your employment, you also may have a retaliation claim, which can become part of your qui tam complaint. Your qui tam attorney will then draft a complaint, which will set out your factual and legal allegations in detail. You will need to review the draft complaint carefully to make sure that your attorney “told the story” accurately and completely. In meeting with the government at the beginning of your case, or if you are questioned under oath later in the case, you will need to be able to explain why each of the allegations made in your complaint were supported by facts. You should also use this opportunity to tell your attorney if you remembered any more details about specific conversations or events, or if you have additional documents.
Once the complaint is finished and you have approved it, then your qui tam attorney will file it in court. If the complaint has federal claims it will be filed in federal court; if it has only state and/or local claims it will be filed in a state or local court.
Your complaint will be filed “under seal,” which means that it will not appear on the public court docket. Someone going online to view the court docket would probably see an entry such as “Anonymous v. Anonymous – FILED UNDER SEAL.” The judge enters an order that only relator and their counsel, the government attorneys and agents, and the judge and judge’s staff, can have access to the complaint or the case file. The order prohibits any of these people from telling anyone else about the existence of the case. Likewise, the complaint will not be delivered to, or “served” on the defendant or defendants. Your qui tam attorney will explain the “sealing order” to you in more detail, but the gist of it is that your case will remain a secret until the judge decides to unseal it, usually on the government’s motion.
The seal lasts a minimum of 60 days, although it is frequently extended by 3-, 6- or even 12-month periods, to give the government the opportunity to fully investigate the case.
Anyone filing a False Claims Act complaint must also at the same time disclose all material information in their possession to the government. For this purpose, your qui tam attorney will prepare a “disclosure statement,” which is a written document describing your allegations and the evidence supporting them. Often the disclosure statement will include a list of potential witnesses, for example a list of corporate executives and managers, their titles/job responsibilities and their respective roles in the fraud. Usually the attorney will provide a number of key documents along with the disclosure statement, along with an index explaining which allegations the documents help prove.