Partner Doug Baruch contributed an Expert Reaction to a Westlaw Today Expert Analysis regarding the US Supreme Court’s Polansky ruling that the False Claims Act (FCA) does not allow the US Department of Justice to dismiss a qui tam lawsuit over a whistleblower’s objections unless the government intervenes, which it may do at any time.
“This holding does not affect a sea change in the government’s dismissal authority, as none of the competing standards imposed any heavy burden on the government. Rather, the issue in everyday FCA practice has been the government’s rare exercise of that prerogative in cases that clearly warranted such government action. The question is whether the government will take this opportunity to actually exercise that authority in a more routine fashion. To date . . . the government has sought dismissal in only a very small fraction of the 600-700 qui tam cases that are filed every year, with the unfortunate effect of allowing many meritless qui tam actions to proceed.”
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