What’s the Difference Between “Intervened” and “Declined” Cases?

Although qui tam cases are filed by whistleblowers, the government always remains the “real party in interest,” the government always gets the lion’s share of any recovery, and the settlement of any qui tam case always requires the government’s approval

Broadly speaking, the government typically plays one of two roles in qui tam cases.

Intervened Cases. In a minority of cases (roughly twenty percent), after investigating a whistleblower’s allegations, the government decides to formally join the whistleblower’s case (“intervene in” the case). These are called “intervened” cases. In intervened cases, although whistleblowers and the government prosecute the case together, the government takes over primary responsibility for the case.

Declined Cases. Most of the time, the government “declines” to intervene in qui tam cases after investigating them. The government declines to intervene in cases for all kinds of reasons, the government often does not disclose its reasons, and they may or may not relate to the government’s  evaluation of the  strength of the case. When making its decisions, the government often considers not only the strength of a case (including its confidence, or lack of confidence, in a relator or his or her counsel) but also enforcement priorities, limited resources, and whether the defendant(s) could pay a judgment or settlement.

After a declination, relators and their counsel often have a difficult choice to make. They have the right to move forward and prosecute a case without the government, but at the same time they also know that, historically, the most successful cases have been the ones the government has intervened in rather than declined. Whistleblowers almost always fervently hope, and defendants almost always fear, that the government will intervene in a case, because the government’s prestige, resources, and ability to impose sanctions independently of the court (for example, by suspending or “debarring” the defendant from future government contracts) almost always improve a whistleblower’s chances.

Because the government declines most cases, one of the factors that separates many of the most successful whistleblower lawyers from the pack is their record in securing the government’s intervention in their clients’ cases. A whistleblower’s lawyer’s reputation and skill can be crucial to persuading the government to intervene. And that is one reason why it is almost always a mistake for whistleblowers to: (a) approach the government without a lawyer or (b) hire an inexperienced lawyer who does not already know FCA law and procedure and, instead, is learning it for your case.