The King and I?: An Examination of the Interest Qui Tam Relators Represent and the Implications for Future False Claims Act Litigation
affiliation not provided to SSRN
January 16, 2010
St. Louis University Public Law Review, Vol. 28, No. 459, 2009
In the face of the ever-growing wave of FCA and qui tam actions, defendants have seemingly few successful, non-substantive defenses. Although the FCA currently provides a public disclosure jurisdictional bar and a “first-to-file” bar, other defenses have been far less accepted by courts. In addition to the already limited arsenal of defenses available to an FCA defendant, a number of cases have arisen where a qui tam relator has filed an action under the FCA only after filing an earlier suit against the same defendant. In the non-FCA context, the concepts of preclusion would normally prevent duplicative litigation. Application of preclusion is muddled, however, by the distinction between the interests represented in a prior private cause of action and those represented in FCA litigation. As a result, the approaches taken by courts and parties alike have been confused and, in some cases, decisions have conflicted with the United States Supreme Court’s articulation of the interest represented by a relator. Considering the pending amendments proposed to the FCA and the consistently high number of qui tam actions since enactment of the 1986 amendments, it is likely that such confusion over the relator-government relationship will persist.
This Comment will provide an overview of the history of qui tam actions while setting forth the government-relator relationship as articulated in cases upholding the constitutionality of the FCA’s qui tam provisions. Specifically, it describes the relator’s standing as a “partial assignee” of the government. The Comment also outlines current claim preclusion law and summarizes recent circuit court decisions applying this judicially-created concept to litigation either prior to or subsequent to a qui tam action.
The remainder of this Comment confronts the conflict between the “partial assignment” theory and the notion that most courts and parties have about who the parties in interest are for claim preclusion purposes. Accordingly, Part IV analyzes the FCA landscape and asserts that while alternative grounds might exist to provide a defense to repetitive claims, using claim preclusion to bar a claim such as that described in the hypothetical above cannot be done in a manner consistent with the concept of partial assignment adopted by the United States Supreme Court. Part V concludes the Comment by proposing a method by which clarity can be gained for the sake of future cases. This proposal includes expanded utilization of the existing FCA text in order to prevent relators from bringing repetitious litigation against the same defendant.
Number of Pages in PDF File: 35
Keywords: False Claims Act, partial assignment
Date posted: January 18, 2010 ; Last revised: January 22, 2010