Increasing DOJ Intervention in False Claims Act Whistleblower Cases

July 23, 2021

The Department of Justice (DOJ) released its annual False Claims Act statistics for fiscal year 2020, proving that False Claims Act litigation and enforcement remained at a healthy level through the COVID-19 pandemic.[1] Of note, the DOJ recovered over $2.2 Billion in fiscal year 2020 under the False Claims Act. Nearly 75% of that recovery was from proceedings brought by whistleblowers under the qui tam provisions of the statute; over 80% came from healthcare fraud.  The False Claims Act can provide whistleblower awards up to 30%, so reverse engineering the math that’s roughly $500,000,000 or five-hundred million dollars in whistleblower awards that were secured through the False Claims Act alone.  According to the whistleblower law firm Brown, LLC, that’s just the tip of the iceberg as its estimated that there’s tens of billions of Medicare fraud especially, PPP loan fraud and other covid-related fraud.

Some of the best whistleblower law firms would have picked up on another piece of data other than the total recovery amount: the total number of new False Claims Act cases in 2020. Indeed, despite the massive disruption caused by COVID-19, 2020 marked a record high for new False Claims Act cases filed in a year (over 900). This increase in False Claims Act litigation activity may largely be attributed to a spike in the number of non-qui tam cases brought directly by the Justice Department, which nearly doubled from the preceding year. [2]

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This suggests that the DOJ is increasingly relying on the False Claims Act to combat fraud upon the United States Government, at a level not seen previously. More recent enforcement data obtained from the DOJ via the Freedom of Information Act only confirms this trend.[3] This data, which analyzes the outcomes in False Claims Act cases over the past ten years, reveals that the Government’s intervention rate is at an all-time-high of 30%, up from 20% in 2010.  This represents a 50% increase in interventions over the same period. Experienced whistleblower attorneys know that the crucial point in any qui tam False Claims Act case is the Government’s intervention decision. Because the Government only intervenes in cases that they believe are substantiated after careful investigation, the vast majority (90% or higher) of intervened cases succeed and the av/healthcare-whistleblower-cases/tips-to-filing-a-qui-tam/erage value of intervened cases is higher than non-intervened, although that statistic can be deceptive, since the relator share will increase if the case succeeds through non-intervention as many cases handled by the whistleblower law firm of Brown, LLC have done

This peak intervention rate, combined with the record number of cases brought directly by the DOJ, confirms that the Government is more aggressively investigating and enforcing, False Claims Act violations. Certain types of fraud related to the COVID-19 pandemic, such as PPP loan fraud and excessive billing of COVID-related services, may be especially attractive to the DOJ. Of course, it is unclear whether this trend will continue into the Biden administration. The whistleblower attorneys at Brown, LLC will be closely monitoring False Claims Act enforcement activity to gauge whether this trend will continue. To find out if you potentially have a viable Medicare fraud whistleblower case, Medicaid Fraud, PPP loan fraud, defense contractor fraud, or any other systemic fraud against the government you should call the whistleblower lawyers at Brown, LLC for a free, confidential, whistleblower consultation to learn your rights. 

[1] See Ralph Mayrell, Digging into FCA Stats: A Decade of Litigation Trends, available at