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At the conclusion of the investigation, or earlier if so directed by the Court, the Department of Justice must choose one of three options named in the False Claims Act:

1. Intervene in one or more counts of the pending qui tam action. This intervention expresses the Government’s intention to participate as a plaintiff in prosecuting that count of the complaint. Fewer than 25% of filed qui tam actions result in an intervention on any count by the Department of Justice.

2. Decline to intervene in one or all counts of the pending qui tam action. If the United States declines to intervene, the relator may prosecute the action on behalf of the United States, but the United States is not a party to the proceedings apart from its right to any recovery. This option is frequently used by relators and their attorneys.

3. Move to dismiss the relator’s complaint, either because there is no case, or the case

conflicts with significant statutory or policy interests of the United States.

In practice, there are two other options for the Department of Justice:

1. Settle the pending qui tam action with the defendant prior to the intervention decision. This usually, but not always, results in a simultaneous intervention and settlement with the Department of Justice (and is included in the 25% intervention rate).

2. Advise the relator that the Department of Justice intends to decline intervention. This

usually, but not always, results in dismissal of the qui tam action.

There are no statistics reported on the length of time the average qui tam case remains under seal. In this District, most intervened or settled cases are under seal for at least two years (with, of course, periodic reports to the supervising judge concerning the progress of the case, and the justification of the need for additional time).

Intervention by the Department of Justice in a qui tam case is not undertaken lightly. Intervention usually requires approval by the Department in Washington. As part of the decision process, the views of the investigative agency are solicited and considered, and a detailed memorandum discussing the relevant facts and law is prepared. This memorandum usually includes a discussion of efforts to advise the named defendant of the nature of the potential claims against it; any response provided by the defendant, and settlement efforts undertaken prior to intervention. This memorandum is considered to be attorney work product exempt from disclosure.

Upon intervention approval, the Department of Justice files:

1. A notice of intervention, setting forth the specific claims as to which the United States is intervening;

2. A motion to unseal the qui tam complaint filed by the relator (including any amended

complaint) and the notice of intervention. All other documents filed by the Department of Justice up to that point remain under seal.

The decision by the Department of Justice to intervene in a case does not necessarily mean that it will endorse, adopt or agree with every factual allegation

March 17, 2009

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