This page defends. It is written for the party a qui tam complaint names as a defendant — the provider, the contractor, the company. If you are a whistleblower looking for counsel to bring a claim, this is not that page; most of what ranks for these terms is written by relator-side firms, and their interests are the opposite of a defendant’s.
Two facts define a False Claims Act case, and both are unusual.
First, the exposure is arithmetic, not judgment. 31 U.S.C. § 3729(a)(1) imposes treble damages plus a civil penalty for each claim. The penalty range is currently $14,308 to $28,619 per claim for penalties assessed after 3 July 2025 — 28 C.F.R. § 85.5, as adjusted effective that date. Because a “claim” is a line item, a defendant with several thousand affected claims faces a penalty floor in the tens of millions before damages are trebled, and often before anyone has said what the actual loss was.
Second, you may not know the case exists. 31 U.S.C. § 3730(b)(2) requires that a relator’s complaint “be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.” In practice the seal is extended repeatedly while the government investigates. A defendant can be under investigation for years — subpoenas issued, former employees interviewed, data analyzed — with no idea a complaint has been filed.
The three Supreme Court decisions that define the current law
| Case | Holding | Effect on a defendant |
|---|---|---|
| Escobar (2016) | Implied false certification is viable, but “[t]he FCA’s materiality requirement is demanding” | Helps. The central defense in most FCA cases |
| SuperValu (2023) | Scienter turns on “a defendant’s knowledge and subjective beliefs — not … what an objectively reasonable person may have known” | Hurts. Removed the objective-reasonableness safe harbor |
| Polansky (2023) | The government may move to dismiss “whenever it has intervened — whether during the seal period or later on” | Mixed. A route out, but only if the government wants one |
Table: the FCA landscape after the 2023 Term. Two of the three moved in 2023, so material written before then is unreliable on scienter and on dismissal.
What the statute actually prohibits
Section 3729(a)(1) lists the prohibited acts. The four that matter most in practice:
- (A) “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval”;
- (B) “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim”;
- (C) “conspires to commit a violation of subparagraph (A), (B), (D), (E), (F), or (G)”; and
- (G) the reverse false claim — knowingly concealing or knowingly and improperly avoiding or decreasing an obligation to pay money to the government.
Subparagraph (G) is the route by which a retained overpayment becomes an FCA case: 42 U.S.C. § 1320a-7k(d)(3) provides that an overpayment retained past the 60-day deadline “is an obligation … for purposes of section 3729.” That mechanism is set out on our medicare fraud attorney page.
Note what is not there: intent to defraud. The FCA’s scienter definition is “actual knowledge,” “deliberate ignorance,” or “reckless disregard” — and, as SuperValu put it, that “three-part test largely tracks the traditional common-law scienter requirement for claims of fraud” while requiring no proof of specific intent to defraud.
On this page
The seal, and what happens inside it
The sealed period is the defining procedural feature of a qui tam case, and it is where the case is largely decided.
Filing and service. Under § 3730(b)(2), the complaint is filed in camera and under seal, and “[a] copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Government.” The defendant gets nothing.
The investigation. The government uses the seal period to investigate: Civil Investigative Demands under 31 U.S.C. § 3733 reaching documents, interrogatories and oral testimony; interviews of former employees; analysis of claims data; and, where the conduct may be criminal, parallel grand jury work.
Extensions. The statutory minimum is 60 days, and courts routinely grant extensions on the government’s motion. Multi-year seals are ordinary.
Intervention or declination. At the end, the government either intervenes and takes over the litigation, or declines — in which case the relator may proceed alone.
What declination does and does not mean
Declination is good news and it is frequently over-read. It means the government has decided not to devote its own resources to the case at that time. It does not mean the government concluded the allegations were meritless, it does not bind the government, and it does not end the case: the relator may proceed, and declined cases are litigated to judgment and to substantial settlements every year. The government also retains the ability to intervene later for good cause — which, after Polansky, is the step that unlocks its power to dismiss.
Signs a sealed case exists
- A Civil Investigative Demand — the CID is an FCA instrument, so its arrival strongly suggests an FCA investigation and quite possibly a sealed complaint;
- interviews of former employees, particularly one who left in circumstances that were unhappy;
- subpoenas focused narrowly on one service line, one arrangement, or one period rather than on the business generally;
- requests that track a specific compliance concern someone raised internally; and
- a document request whose scope matches what a particular person would have known.
Escobar: materiality is the defense
Universal Health Services v. United States ex rel. Escobar, 579 U.S. 176 (2016), is the most useful decision in this field for defendants, and it repays precise quotation.
The theory is viable, within limits. “The implied false certification theory can be a basis for FCA liability when a defendant submitting a claim makes specific representations about the goods or services provided, but fails to disclose noncompliance with material statutory, regulatory, or contractual requirements that make those representations misleading with respect to those goods or services.”
Three elements there: a specific representation, an undisclosed material noncompliance, and the noncompliance rendering the representation misleading. A claim that merely requests payment, without specific representations, does not fit the theory as the Court described it.
Labels do not decide it. “False Claims Act liability for failing to disclose violations of legal requirements does not turn upon whether those requirements were expressly designated as conditions of payment. Defendants can be liable for violating requirements even if they were not expressly designated as conditions of payment. Conversely, even when a requirement is expressly designated a condition of payment, not every violation of such a requirement gives rise to liability.”
The standard is demanding. “The FCA’s materiality requirement is demanding.” And the Court gave content to that:
- “A misrepresentation cannot be deemed material merely because the Government designates compliance with a particular requirement as a condition of payment.”
- “Nor is the Government’s option to decline to pay if it knew of the defendant’s noncompliance sufficient for a finding of materiality.”
- “Materiality also cannot be found where noncompliance is minor or insubstantial.”
And the government’s own behavior is evidence. “[I]f the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material.”
That last sentence is the single most valuable line for a defendant in this area, and it is a discovery instruction as much as a legal proposition. If the payer knew about the practice — through an audit, a prior disclosure, a corrective action plan, a published policy, an industry-wide practice it never acted on — and kept paying, that fact goes directly to materiality. Establishing what the government knew and when is work worth doing early, because it shapes everything after it.
The Court also framed the ultimate question in a way that helps: “What matters is not the label that the Government attaches to a requirement, but whether the defendant knowingly violated a requirement that the defendant knows is material to the Government’s payment decision.”
SuperValu: what 2023 took away
United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739 (2023), removed a defense that had been developing in the courts of appeals, and defendants need to know it is gone.
The argument had been that where a legal requirement is ambiguous, a defendant who adopted an objectively reasonable interpretation cannot have acted “knowingly,” whatever it actually believed. The Supreme Court rejected it: “The FCA’s scienter element refers to a defendant’s knowledge and subjective beliefs — not to what an objectively reasonable person may have known or believed.”
The reasoning is textual. “Knowingly” encompasses three mental states — “actual knowledge of the information,” “deliberate ignorance of the truth or falsity of the information,” and “reckless disregard of the truth or falsity of the information” — and “either actual knowledge, deliberate ignorance, or recklessness will suffice.”
And ambiguity does not immunize: “Although the terms, in isolation, may have been somewhat ambiguous, that ambiguity does not preclude respondents from having learned their correct meaning — or, at least, becoming aware of a substantial likelihood of the terms’ correct meaning.”
Two things survive, and both matter.
The inquiry is fixed at the time of submission. “[T]he focus is not … on post hoc interpretations that might have rendered their claims accurate. It is instead on what the defendant knew when presenting the claim.” Culpability “is generally measured against the knowledge of the actor at the time of the challenged conduct.” A defendant who genuinely held a good-faith reading at the time is not made culpable by a later authoritative interpretation to the contrary.
Subjective belief remains the question — which is a factual question. Because scienter is now expressly about what the defendant actually believed, contemporaneous evidence of the belief is the case: the compliance memorandum, the advice obtained, the payer guidance relied on, the consistent application of the position across matters where it was against the defendant’s interest as well as for it. What SuperValu removed was the ability to win on scienter without that evidence.
Polansky: dismissal after declination
United States ex rel. Polansky v. Executive Health Resources, 599 U.S. 419 (2023), addressed what happens when the government wants a declined case to end but the relator does not.
The holding. “The Government may move to dismiss an FCA action under § 3730(c)(2)(A) whenever it has intervened — whether during the seal period or later on.” So the government’s power to dismiss survives an initial declination, provided it intervenes, which it may do later on a showing of good cause.
The standard. “In assessing a motion to dismiss an FCA action over a relator’s objection, district courts should apply the rule generally governing voluntary dismissal of suits in ordinary civil litigation — Rule 41(a).”
And the practical weight. “[A] district court should think several times over before denying a motion to dismiss. If the Government offers a reasonable argument for why the burdens of continued litigation outweigh its benefits, the court should grant the motion. And that is so even if the relator presents a credible assessment to the contrary.”
Two procedural points the Court preserved: the FCA “requires notice and an opportunity for a hearing before a Subparagraph (2)(A) dismissal can take place,” and in the FCA context the Rule 41(a)(2) “proper terms” analysis “is more likely to include the relator’s” interests where the relator “may have committed substantial resources to the action.”
What this is worth to a defendant. In a declined case with weak allegations and real burden on the government — including on its own agencies, which bear the discovery — persuading the government to intervene for the purpose of dismissing is a genuine strategic route, and Polansky makes it a more realistic one than it was. It is not a defendant’s motion to make, which is the limit of it.
There is one further point worth knowing. Justice Kavanaugh, concurring, and Justice Thomas, dissenting, both flagged that “[t]here are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation,” and Justice Kavanaugh said “the Court should consider the competing arguments on the Article II issue in an appropriate case.” That is not the law, and no page should present it as such — but it is a live question, and preserving it is not frivolous.
Damages and penalties: the arithmetic
| Component | Measure | Source |
|---|---|---|
| Damages | Three times the damages the government sustained | 31 U.S.C. § 3729(a)(1) |
| Penalty per claim — assessed after 3 July 2025 | $14,308 minimum, $28,619 maximum | 28 C.F.R. § 85.5 (eff. 3 July 2025) |
| Penalty per claim — assessed after 12 Feb 2024 and on or before 3 July 2025 | $13,946 minimum, $27,894 maximum | 28 C.F.R. § 85.5 |
| Relator’s share | A percentage of the recovery, set by statute and differing by whether the government intervened | 31 U.S.C. § 3730(d) |
Table: FCA monetary exposure. The penalty amounts are inflation-adjusted annually, so any figure quoted without a date should not be relied on — confirm the current adjustment before using a number.
Two consequences follow from the structure.
The penalty can exceed the damages by orders of magnitude. Where each claim is small and the number of claims is large — which describes health care billing exactly — the per-claim penalty drives the exposure, and it does so without regard to what was actually lost. That mismatch is worth arguing, and the constitutional excessiveness of a penalty grossly disproportionate to the harm is a question that has been raised and is not foreclosed.
Reduced damages for prompt disclosure. Section 3729(a)(2) provides for a reduction from treble to not less than double damages where the person committing the violation furnished the responsible officials with all information known about the violation within 30 days of first obtaining it, fully cooperated, and did so at a time when no criminal prosecution, civil action or administrative action had commenced and the person had no actual knowledge of an investigation. The conditions are strict and the window is short, which is precisely why the decision has to be made quickly and with advice.
Limitations, proof, and the criminal-case trap
Three provisions in 31 U.S.C. § 3731 shape the litigation, and the third is the most dangerous.
The limitations period is long and has two branches. A civil action “may not be brought — (1) more than 6 years after the date on which the violation of section 3729 is committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.”
So the outer bound is ten years, and the three-year discovery branch can extend a case well beyond the six-year mark. Which “official … charged with responsibility to act” is the relevant one, and what that official knew and when, are litigable questions — and they interact directly with the Escobar materiality inquiry, because both turn on what the government knew.
The burden is a preponderance. “In any action brought under section 3730, the United States shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.” Note “including damages” — the damages figure is an element the government has to prove, not a number it may assert.
A criminal conviction resolves the civil case. This is the provision that determines strategy where both tracks are live:
“Notwithstanding any other provision of law, the Federal Rules of Criminal Procedure, or the Federal Rules of Evidence, a final judgment rendered in favor of the United States in any criminal proceeding charging fraud or false statements, whether upon a verdict after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying the essential elements of the offense in any action which involves the same transaction as in the criminal proceeding.”
A guilty plea to a fraud or false-statement offense therefore forecloses the essential elements in the parallel FCA case — including, in substance, falsity and scienter. A plea negotiated only on the criminal exposure can hand away the civil case. Any resolution of a criminal matter that runs alongside an FCA action has to be structured with § 3731(e) in mind, and that is a reason to have the same team looking at both.
The relator, the bars, and the retaliation claim
The relator’s share. Under § 3730(d), where the government intervenes the relator receives “at least 15 percent but not more than 25 percent of the proceeds … depending upon the extent to which the person substantially contributed to the prosecution.” Where the government does not proceed, the share is “not less than 25 percent and not more than 30 percent.” And where the action is “based primarily on disclosures of specific information (other than information provided by the person bringing the action)” from a hearing, a government report, audit or investigation, or the news media, the court may award “in no case more than 10 percent.”
That structure matters to a defendant for a practical reason: a relator with a 25–30 percent stake in a declined case has a strong personal incentive to litigate rather than settle cheaply, and the economics of a declined case are different from an intervened one.
The public disclosure bar. Section 3730(e)(4)(A) provides that “[t]he court shall dismiss an action or claim under this section, unless opposed by the Government, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed — (i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party; (ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or (iii) from the news media.”
This is a threshold defense capable of ending a case, and it is available more often than it is used — because establishing what was publicly available, and that it was “substantially the same,” requires a factual reconstruction that takes work.
The original-source exception. The bar does not apply where the relator “is an original source of the information,” defined as someone who “prior to a public disclosure … has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based,” or who “has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing.” Whether a relator’s contribution “materially adds” to what was already public is the contest.
Retaliation — the claim that outlives the qui tam. Section 3730(h) entitles “[a]ny employee, contractor, or agent” who is “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done … in furtherance of an action under this section or other efforts to stop 1 or more violations” to “all relief necessary to make [them] whole.” The relief is specified: “reinstatement with the same seniority status …, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages …, including litigation costs and reasonable attorneys’ fees.” A retaliation action “may not be brought more than 3 years after the date when the retaliation occurred.”
Two consequences for a defendant. A retaliation claim can survive even where the underlying FCA allegations fail, because it turns on how the employee was treated rather than on whether the fraud occurred. And how an employer responds to an internal complaint is itself evidence — in the retaliation claim, and in the FCA case, where a documented complaint that was investigated and answered looks very different from one that was followed by a termination.
Where an FCA case is actually defended
Materiality. Escobar. What did the payer know, when did it know it, and did it keep paying? This is the first line of attack in most cases and frequently the best one.
Falsity. Whether the claim was false at all. Where the dispute is about a scientific or clinical judgment, or about the correct reading of an ambiguous rule, a difference of professional opinion is not a falsehood — and establishing that the requirement itself was genuinely contestable does real work even after SuperValu, because it bears on what the defendant actually believed.
Scienter, at the time. After SuperValu, the question is subjective belief when the claim was presented. Contemporaneous evidence is everything: what advice was obtained, what guidance was consulted, whether the position was applied consistently including where it cut against the defendant.
Damages causation. Trebling applies to damages “the Government sustains.” Where the service was provided and was of value, the government’s loss is not the amount paid. Contesting the damages base is worth as much as contesting liability, because it is trebled.
Statistical extrapolation. Where the damages figure comes from a sample, the sampling frame, size, stratification, individual error determinations and confidence interval are all challengeable — and the extrapolated figure is what gets trebled.
Public disclosure and first-to-file. The FCA contains bars on actions based on publicly disclosed allegations and on duplicative later-filed actions. These are threshold defenses and they are routinely available where the relator’s information came from litigation, government reports, audits or the news.
Rule 9(b). Fraud must be pleaded with particularity. Complaints that allege a scheme without identifying representative false claims are vulnerable, and the courts of appeals differ on how much particularity is required — so the law of the district matters.
The parallel criminal track. Where the conduct is also potentially criminal, everything said in the civil case is available to prosecutors. Sequencing, and a motion to stay the civil case, may be the first thing filed.
For the substantive health care law behind most FCA cases, see our healthcare fraud attorney hub and the stark law attorney page — the latter matters because 42 U.S.C. § 1320a-7b(g) makes any claim resulting from a kickback a false claim by statute. Where a criminal case runs alongside, the framework is on the white collar crime lawyer hub and sentencing in our federal sentencing pages. Where a conviction has been entered, review runs through federal appeals and, for claims outside the record, a § 2255 motion. Elizabeth Franklin-Best, P.C. is a federal criminal defense attorney practice defending False Claims Act and parallel criminal matters nationwide.
Frequently Asked Questions About the False Claims Act and Qui Tam
What is a qui tam case?
A False Claims Act action brought by a private person — a “relator” — in the name of the United States, under 31 U.S.C. § 3730(b). The relator sues on the government’s behalf and, if the case recovers, receives a share of it. The distinguishing procedural feature is the seal: the complaint “shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.”
How can a case be pending against me without my knowing?
Because of that seal. The statutory minimum is 60 days, and courts routinely extend it while the government investigates — multi-year seals are ordinary. During that period the government issues Civil Investigative Demands, interviews former employees and analyses data, and the defendant is not served. The first indication is usually a CID or a subpoena rather than a complaint.
What does it mean if the government declines to intervene?
That it has decided not to commit its own resources to the case at that time. It does not mean the allegations were found meritless, and it does not end the case: the relator may proceed alone, and declined cases are litigated and settled every year. The government can also intervene later for good cause — and after United States ex rel. Polansky v. Executive Health Resources, 599 U.S. 419 (2023), that is what unlocks its power to seek dismissal.
Can the government get a case dismissed if I persuade it the case is bad?
It can, and Polansky makes that route more realistic. The Court held that the government “may move to dismiss an FCA action under § 3730(c)(2)(A) whenever it has intervened — whether during the seal period or later on,” that Rule 41(a) supplies the standard, and that “[i]f the Government offers a reasonable argument for why the burdens of continued litigation outweigh its benefits, the court should grant the motion … even if the relator presents a credible assessment to the contrary.” The limit is that it is the government’s motion, not the defendant’s.
What is the materiality defense?
The most important defense in most FCA cases, from Universal Health Services v. United States ex rel. Escobar, 579 U.S. 176 (2016): “The FCA’s materiality requirement is demanding.” A misrepresentation is not material “merely because the Government designates compliance with a particular requirement as a condition of payment,” nor because the government would have had “the option to decline to pay,” and materiality “cannot be found where noncompliance is minor or insubstantial.” Most usefully: “if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material.”
Doesn’t a reasonable interpretation of an ambiguous rule protect me?
Not by itself — not since 2023. United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739 (2023), holds that “[t]he FCA’s scienter element refers to a defendant’s knowledge and subjective beliefs — not to what an objectively reasonable person may have known or believed.” What survives is that the inquiry is fixed at the time of submission — “what the defendant knew when presenting the claim,” not “post hoc interpretations” — so contemporaneous evidence of the belief actually held is what now carries the defense.
Is the False Claims Act only about health care?
No. It reaches any false or fraudulent claim for payment or approval by the federal government, which includes defense and government contracting, grant and research funding, customs duties, disaster and pandemic relief programs, education funding, and mortgage and loan guarantee programs. Health care generates the largest share of recoveries because of the claim volume and because 42 U.S.C. § 1320a-7b(g) converts kickback violations into false claims by statute — but the Act itself is a general federal-funds statute, and the defenses described here apply across all of it.
How much can an FCA case cost?
Treble damages plus a penalty for each claim. The current per-claim range is $14,308 to $28,619 for penalties assessed after 3 July 2025 under 28 C.F.R. § 85.5. Because a claim is a line item, the penalty component alone can reach the tens of millions on a modest damages figure. These amounts are inflation-adjusted annually, so confirm the current range rather than relying on a figure with no date attached.
Is there any way to reduce the damages multiplier?
Section 3729(a)(2) provides for not less than double rather than treble damages where the person furnished all known information about the violation to the responsible officials within 30 days of first obtaining it, fully cooperated, and did so before any criminal prosecution, civil action or administrative action had begun and without actual knowledge of an investigation. The conditions are strict and the window is very short — which is why a disclosure decision has to be made quickly and with advice. Where money has already moved between entities, money laundering exposure and tax exposure both need assessing before anything is disclosed.
The government’s damages number seems to be the whole amount paid. Is that right?
Usually not, and it is worth contesting because whatever survives is trebled. Section 3731(d) requires the United States to prove “all essential elements of the cause of action, including damages, by a preponderance of the evidence” — damages are an element, not an assertion. Where the goods or services were actually delivered and had value, the government’s loss is not the amount it paid; it is the difference between what it paid and what it received. Where the figure comes from a statistical sample extrapolated across a claims universe, the sampling frame, sample size, stratification, individual error determinations and confidence interval are all challengeable — the same extrapolation fight described on our Medicare fraud defense page, where it also drives the criminal guideline loss. Reducing the damages base is worth three times as much as it looks, and because the same figure usually becomes the guideline loss in any parallel prosecution, it is worth more than that again — see our federal sentencing pages.
Do I have to have intended to defraud anyone?
No. The FCA requires that the defendant acted “knowingly,” which the statute defines as actual knowledge, deliberate ignorance, or reckless disregard of the truth or falsity of the information. SuperValu described that test as one that “largely tracks the traditional common-law scienter requirement for claims of fraud” while requiring no proof of specific intent to defraud. That is a materially lower bar than the criminal statutes carry, which is why a civil FCA case can survive facts that would not support the criminal charges the same conduct might otherwise attract — including the securities fraud counts that arise where a payor or provider is publicly held.
How far back can an FCA case reach?
Further than most people expect. 31 U.S.C. § 3731(b) allows an action within six years of the violation, or within three years of when facts material to the right of action “are known or reasonably should have been known by the official of the United States charged with responsibility to act” — capped at ten years from the violation — “whichever occurs last.” Which official is the relevant one, and what that official knew and when, are litigable, and the answer interacts directly with the Escobar materiality question. The criminal limitations periods running alongside are shorter — five years generally, ten where a financial institution is affected — and are set out on our wire fraud page.
Will pleading guilty in the criminal case settle the civil case too?
The opposite. Section 3731(e) provides that a final judgment for the United States “in any criminal proceeding charging fraud or false statements, whether upon a verdict after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying the essential elements of the offense” in an FCA action involving the same transaction. A plea negotiated only on the custody exposure can hand away the civil case entirely. Any criminal resolution running alongside an FCA matter has to be structured with that provision in mind. That is a federal criminal defense judgment as much as a civil one, and it has to be made before the plea rather than after it.
An employee complained internally and was later let go. Is that a problem?
Potentially a significant one, and it is independent of whether the underlying allegations are true. Section 3730(h) entitles an employee, contractor or agent who is “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against” because of protected acts to “all relief necessary to make [them] whole” — including reinstatement, “2 times the amount of back pay,” interest, special damages, costs and attorneys’ fees, with a three-year limitations period. How a complaint was handled is also evidence in the FCA case itself: a documented complaint that was investigated and answered reads very differently from one followed by a termination. The employee who made it will usually have been interviewed by company counsel — a moment discussed on our embezzlement page, and one that decides more cases than it should.
The allegations were already public. Does that help?
It can end the case. Under § 3730(e)(4)(A), a court “shall dismiss” an action, unless the government opposes, where “substantially the same allegations or transactions” were publicly disclosed in a federal hearing where the government was a party, in a congressional, GAO or other federal report, hearing, audit or investigation, or in the news media — unless the relator is an “original source.” That exception covers someone who disclosed to the government before the public disclosure, or whose knowledge is “independent of and materially adds to” what was public. Whether the relator materially added anything is the contest, and it requires reconstructing what was available and when. Where a conviction has been entered in the parallel criminal case, review runs through federal appeals and, for claims outside the record, a § 2255 motion.
If a kickback is alleged, does that automatically make the claims false?
By statute, in the health care context, largely yes. 42 U.S.C. § 1320a-7b(g) provides that “a claim that includes items or services resulting from a violation of this section constitutes a false or fraudulent claim” under the FCA. So the contest moves upstream to whether the Anti-Kickback Statute was violated at all — the analysis on our Anti-Kickback and Stark page — and, downstream, to which claims genuinely “resulted from” the arrangement. Both are contestable, and the second is often underworked.
By Elizabeth Franklin-Best, Esq. — Principal Attorney & Founder, Elizabeth Franklin-Best, P.C.
Facing a Qui Tam Complaint?
A sealed complaint means the government is investigating before you can respond. What happens during the seal often decides whether it intervenes.
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Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026