In the market economy of the United States, a large segment of industry is focused on providing goods and services to the government or to the public on behalf of the government. Often, small businesses are preferred to multinational corporations. But, when the actions of a business toward the government involve the myriad methods of deceit and inflating costs and billing, the business’s legitimate actions have turned into fraud against the government. For those employees who witness this fraudulent behavior and wish to act, one option is to file a qui tam action. The action may be brought either by a relator (the whistleblower) on behalf of the United States or by the Attorney General. Whether brought by the relator or the Attorney General, the relator is entitled to a certain percentage of the judgment or settlement. Though if brought by the relator, they receive a larger portion of the judgment. Yet, the issue of what should happen to those proceeds of the qui tam action when the relator dies before the conclusion of the suit or the realization of the award remains unclear. There has not been a clear determination of this question as arguments exist both for and against survival. While it is difficult, it would be better for Congress to reassert its authority in this area by reaffirming its legislative intent that the False Claims Act (FCA) is remedial in nature, and add language to the Act indicating the action is to survive the death of the relator. Doing so would end any judicial reliance on federal common law and more clearly indicate the property interest in proceeds created by the FCA. Such language would resolve the problems and preserve the intent behind the FCA and provide for uniformity of its application across federal courts.
St. Mary's University School of Law
Joseph E. Hoffer,
Qui Tam: Survival of the Action and Fate of the Proceeds following the Death of the Relator for the King and for Himself ... and His Heirs.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol37/iss1/4
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