Factors used to determine the Whistleblower Award under the FCA

posted on:
December 8, 2015

author:
Larry Golston

Section 3730(d)(1) of the False Claims Act (FCA), 31 U.S.C. §§3729-33, provides that when the Government has intervened in a FCA lawsuit, the qui tam relator shall receive at least 15 percent but not more than 25 percent of the proceeds of the FCA action. When the Government does not intervene, section 3730(d)(2) provides that the relator shall receive an amount that the court decides is reasonable and shall be not less than 25 percent and not more than 30 percent.

Legislative history suggests that the 15 percent should be viewed as the minimum award – for a relator’s share – and the starting point for a determination of the proper award. According to the Department of Justice’s (DOJ) “Relator Share Guidelines,” when trying to reach an agreement with a relator as to his or her share of the proceeds, or proposing an amount or percentage to a court, the DOJ suggests that you begin your analysis at 15 percent.

Then, both the relator and relator’s counsel should consider if any bases exist to increase the percentage based on the criteria set forth below. Of course, absent one of the statutory bases for an award less than 15 percent discussed below, the percentage cannot be below 15 percent (or 25 percent if the Government did not intervene).

Items for consideration for a possible increase in the percentage:

  • The relator reported the fraud promptly.
  • When he learned of the fraud, the relator tried to stop the fraud or reported it to a supervisor or the Government.
  • The qui tam filing, or the ensuing investigation, caused the offender to halt the fraudulent practices.
  • The complaint warned the Government of a significant safety issue.
  • The complaint exposed a nationwide practice.
  • The relator provided extensive, first-hand details of the fraud to the Government.
  • The Government had no knowledge of the fraud.
  • The relator provided substantial assistance during the investigation and/or pretrial phases of the case.
  • At his deposition and/or trial, the relator was an excellent, credible witness.
  • The relator’s counsel provided substantial assistance to the Government.
  • The relator and his counsel supported and cooperated with the Government during the entire proceeding.
  • The case went to trial.
  • The FCA recovery was relatively small.
  • The filing of the complaint had a substantial adverse impact on the relator.

Having considered grounds for increasing the relator’s award, per the DOJ guidelines, the relator and relator’s counsel must also consider if the percentage should be reduced based on a second set of criteria.

Items for consideration for a possible decrease in the percentage:

  • The relator participated in the fraud.
  • The relator substantially delayed in reporting the fraud or filing the complaint.
  • The relator, or relator’s counsel, violated FCA procedures: (a) complaint served on defendant or not filed under seal; (b) the relator publicized the case while it was under seal; (c) statement of material facts and evidence not provided.
  • The relator had little knowledge of the fraud or only suspicions.
  • The relator’s knowledge was based primarily on public information.
  • The relator learned of the fraud in the course of his Government employment.
  • The Government already knew of the fraud.
  • The relator, or relator’s counsel, did not provide any help after filing the complaint, hampered the Government’s efforts in developing the case, or unreasonably opposed the Government’s position in litigation.
  • The case required a substantial effort by the Government to develop the facts to win the lawsuit.
  • The case settled shortly after the complaint was filed or with little need for discovery.
  • The FCA recovery was relatively large.

Are you aware of fraud being committed against the federal government, or a state government? If so, the FCA can protect and reward you for doing the right thing by reporting the fraud. If you have any questions about whether you qualify as a whistleblower, please contact an attorney at Beasley Allen for a free and confidential evaluation of your claim.

There is a contact form on this website, or you may email one of the lawyers on our whistleblower litigation team: Andrew Brashier, Archie Grubb, Larry Golston, or Lance Gould.

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