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HERE IS WHAT SOME FEDERAL JUDGES HAVE SAID:
Joyce Riley, Plaintiff - Appellant, v. St. Lukes Episcopal Hospital, et. al. Defendants - Appellees, No. 97-20948 in the United States Court of Appeals for the Fifth Circuit, before Smith, DeMoss, and Stewart, Circuit Judges, Opinion by Jerry E. Smith, Circuit Judge.
USA ex rel Covington, Sidicane v. Sisters of the Third Order of Saint Dominic of Hanford, California, d.b.a. - Sacred Heart Hospital, et. al., 61 F.3d 909, Unpublished Disposition, 1995 WL418311 (9th Cir. July 13, 1995)
The Government attempted to foreclose qui tam relators from receiving a share from a payment received from the defendant because the govemment classified the payment as "restitution" as opposed to "damages".
The appellate court succinctly rejected the Government's argument, pointing out that such a rule would allow the Government to eliminate recovery for qui tam relators by simply characterizing the nature of the defendant's conduct.
U.S.A. ex rel. Peter Jensen Thornton v. Science Applications International Corporation, et al., Order Awarding Statutory Share of Settlement And Denying Request For Attorney Fees, filed September 17, 1998, Civil Action No. 3:94-CV-0749-T, In The U.S. District Court for the Northern District of Texas, Dallas Division, defined ..qui tam proceeds and defined the requirements for the relator to successfully request and receive attorney's fees.
A qui tam plaintiff should receive between 15% and 20% of the proceeds, depending on how much the person substantially contributed to the prosecution of the claim. See 31 U.S.C. 3730(d)(l).
Based on (1) the plain meaning of the word "proceeds," (2) the terms of the settlement agreement, and (3) the representations of the parties, the Court concludes that the claims released (or abandoned) by Defendants are included in the proceeds of the settlement. ...In sum, the Court concludes that the $... cash and the claims abandoned by Defendants should be included as the proceeds of the settlement.
U.S. ex rel Neher, as Personal Representative of the Estate of Arthur P. Williams v. NEC Corp., No. 92-2854 (11th Cir. Apr. 28, 1995) recently defined the conditions of an illegal "de facto" intervention and termination of the lawsuit by the actions of the government lacking Court approval. It stated:
The 11th Circuit characterized the Government's arguments as "specious" and as an attempt "to take advantage of its blatant violations of the statute."
In a strongly worded opinion, critical of the Government's handling of the case, the appellate court concluded that the government's settlement with the defendant constituted an election to intervene in the lawsuit and that the estate of the deceased relator was entitled to 15 percent of the settlement.
The court held that the Government's settlement with NEC constituted an election to intervene in the lawsuit and proceed with the action within the meaning of the False Claims Act.
... the settlement effectively terminated the lawsuit, except for the determination of William's statutory share under 3730(d)(l) of between 15 and 25 percent (as well as attorneys' fees and expenses.)
U.S.A. ex. rel. Robert J. Merena v. SmithKline Beecham Corp., SmithKline Beecham Clinical Laboratories, Inc., Judgement, dated April 8, 1998, Civil Action No. 93-5974, originally filed on July 23, 1997, In The U.S. District Court for the Eastern District of Pennsylvania.
Footnote # 10 - "The Government did not elect to intervene until after it had agreed with (defendant) on specific settlement terms to resolve all of the claims in the (plaintiffs') cases and long after the (date) agreement in principle had been negotiated."
Page 30 - "The necessary element under the statute is not an investigation but rather public disclosure. Government investigations are ordinarily not publicly disclosed until they are completed. Merely because a qui tam complaint may make allegations that correspond with or parallel allegations that a Government agency may be investigating, the qui tam action is not barred, nor is the qui tam relator precluded from an appropriate statutory share of any resulting recovery."
Page 37 - "Were a qui tam action is filed, and the Government intervenes and expands the allegations of the complaint, or settles the action, including broader claims than alleged in the qui tam action, this should not preclude the qui tam relator..from ..receiving the minimum statutory qui tam share of l5 percent of the entire settlement, as well as a percent above the 15 percent minimum up to a maximum of 25 percent "...depending upon the extent to which the person (qui tam Relator) substantially contributed to the prosecution of the action."
Page 41 - "There is absolutely no evidence on the record before me, beyond the unacceptable waiver argument, to establish any allocation among various claims. The Relators repeatedly sought explanation from the Government, both informally and in discovery, as to the Government's allocation calculations. The Government's only response is, and always has been, that the calculations were based on rational estimates of losses and complex negotiations among various governmental agencies and that the parties and the court are bound to accept the Government's calculations. It seems to me to be almost a "trust us, we are not wrong, we are correct" attitude. The Government tries, at a minimum, to require Relators to prove the allocations are in error without providing Relators with any discovery on the issue, although such discovery was reguested. This I cannot accept. I conclude on this issue, that the Relators are not bound by the allocations assigned by the Government as to the... and the... qui tam allegations. It is the Government that attempts to reduce the individual and total qui tam award shares by assigning particular values to various claims.
Page 70 - "I am left with the impression that the attorneys in charge of the... investigation, conducted... by the DOJ seek to take far more credit for the overall success of the proceeds.
Page 72 - "Perhaps the reason the litigation has been presented in this light is because the Government wants to minimize the contributions of the Relators in order to lower their ultimate award.
Page 72 - "I recognize that some of the arguments presented by the Government attorneys may have been caused by a sincere desire to save as much of the proceeds as possible for the Government. However, an Act of Congress provides for substantial awards in order that persons who acquire first hand knowledge of false claims being presented to the Government will come forth and file meritorious qui tam complaints. The success of this legislation in continuing to achieve its goals can only be assured by unstintingly providing the qui tam awards dictated by Congress irrespective of the size of the awards."
US v. Hill, 48 F3d 228 (7th Cir.1995)
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