Quitam Relator: A Modern Day Goldilocks Searching for the Just Right Circuit

摘要

The False Claims Act (FCA) is an important statutory tool that allows the government to recover money obtained from it by fraudulent means. The Act not only gives the government a statutory means of recovery, it also empowers private citizens to bring suits on behalf of the government. Since the most recent changes to the FCA in 1986, qui tam suits have recovered more than $2.5 billion in fines and damages. In addition, since the 1986 Amendments went into affect the number of qui tam suits filed increased more than forty times the previous number of such suits. The amended qui tam provisions appear to be very successful not only as a method to recover government funds, but also as a means to deter fraud. Despite the success of the qui tam provisions there are concerns that the Act is not living-up to its full potential. The principal sponsors of the 1986 Amendments, Representative Berman and Senator Grassley, voiced their concern before Congress that some circuits courts interpret too restrictively what constitutes a public disclosure and who could be an original source. There is indeed inconsistency among the circuits involving the most recent amendments to the Act. Some circuits adopt what is best described as a too hard, restrictive Daddy Bear approach, the result of which excludes many would-be relators. Other circuits are viewed as too soft Mother Bears that interpret the Act less restrictively which allows a larger category of relators to file suit.