FCA cases are like any other kind – they range from small to large, and like snowflakes, they’re all different. The common initial stages of a case large enough to be worth a review are perhaps best illustrated by using a recent case filed in the EDTX that is, after over two years under seal, just getting underway, at least in terms of public filings.
Recent years have seen regular increases in the number of filings both locally and nationally under the False Claims Act, a Civil War-era law that imposes liability on persons and companies who defraud government programs. While the claims originated in the government’s attempt during the Civil War to reduce the spectacularly shoddy supplies sold to the government by contractors during the war, ranging from rancid supplies to shoddy equipment and diseased pack animals, the claims now deal with alleged fraudulent health care claims as well as military and other government spending. Often these claims are brought by private individuals under the Act’s qui tam provisions, which permit payments to these “relators” of a portion of the recovered damages. The cases are typically filed under seal and are are not initially served on the defendant, and while the statutory period is 60 days, this is often extended. This makes it difficult to track exactly how many cases are being filed, since it can be a year or more (in some cases many more) before a case is unsealed. That makes this recent opinion by Judge Gilstrap on the propriety of “re-sealing” a FCA case of interest to FCA practitioners.