Checklist · Litigation

Filing a Qui Tam Complaint Under Seal: A Relator's Checklist

42 U.S.C. § 1320

Type: Checklist
Jurisdiction: National
Date: 2025-06-08
Topic: Litigation

A working checklist for bringing a False Claims Act case, sequenced so the irreversible decisions happen in the right order. Phases one through four are the intake that must precede any filing: the conversation about what the relator may and may not lawfully take, the evidence inventory, the screen against the first-to-file, public disclosure, government action, and limitations bars, and the construction of a theory that names the liability provision and confronts materiality and scienter head-on. Phases five through eight prepare the filing: quantifying damages and the penalty stack, choosing venue with attention to the circuit split on Rule 9(b) and on Escobar's two conditions, sequencing the retaliation claim so a public filing does not blow the seal, and drafting a complaint that survives particularity review. Phases nine through twelve cover the filing itself and the seal period: the written disclosure statement that determines intervention more than the complaint does, proper service on the United States, working with the investigating team through civil investigative demands, and the intervention decision. Phases thirteen through eighteen cover life after the election, including declined-case economics, the government's dismissal power after Polansky, settlement and the relator share, corporate integrity agreements, tax treatment of the award, and the relator's own employment.

Filing a Qui Tam Complaint Under Seal: A Relator's Checklist

Litigation > Whistleblower and Qui Tam | Published 8 June 2025 - Updated 4 July 2026 | UpLaw - uplaw.us

Three decisions in a qui tam case cannot be undone: what documents the relator takes, when the complaint is filed, and what the disclosure statement says. The first can destroy the case and the relator's career. The second is a race against an invisible competitor under the first-to-file bar. And the third determines, more than the complaint does, whether the government intervenes — which is the difference between most recoveries and almost none.

Keywords: relator intake, evidence limits, first-to-file, public disclosure, original source, Rule 9(b), disclosure statement, seal, CID, intervention, Polansky, relator share, § 3730(h)

Work this in order. The doctrinal treatment is in The False Claims Act: A Comprehensive Guide to Qui Tam Litigation and Government Fraud Enforcement. The narrative overview is Blowing the Whistle: How a Civil War Statute Became the Government's Sharpest Fraud Weapon.

Our running example. Dr. Naomi Cross (fictional), an interventional cardiologist at Arden Valley Health Partners (fictional), believes a colleague is implanting cardiac stents below the clinical threshold under a volume-based compensation arrangement.

Phase 1 — The first conversation

[ ] Establish the attorney-client relationship in writing before hearing details, and confirm the fee arrangement covers a case that may sit under seal for years.
[ ] Tell the client, first, not to take any more documents until you have advised on what is permissible.
[ ] Tell the client not to discuss the matter with colleagues, family, journalists, or on any employer system.
[ ] Determine whether the client has already made an internal complaint — this starts the retaliation clock and may be relevant to protected activity.
[ ] Determine whether the client has signed anything — an NDA, a separation agreement, a confidentiality certification — that purports to restrict reporting.
[ ] Determine whether the client has any exposure in the conduct. § 3730(d)(3) permits reducing or eliminating the share; a criminal conviction eliminates the relator entirely.
[ ] Run a conflicts check covering the defendant, its affiliates, and its counsel. See Running a Conflicts Check: A Practical Checklist.
[ ] Explain the realistic timeline: months to prepare, 60 days minimum under seal, and commonly one to three years before the intervention decision.

Why it matters, and the traps. Relators arrive convinced the government will act within weeks. Setting the timeline honestly at the first meeting prevents the client from doing something impulsive at month fourteen.

Note that agreements purporting to bar reporting to the government are unenforceable as to that reporting, and SEC Rule 21F-17 makes imposing them an independent violation in the securities context. Do not let an NDA stop the analysis — but do read it, because it may restrict what the relator may take.

Phase 2 — Evidence, and its limits

[ ] Inventory what the client already has, and how each item was obtained.
[ ] Determine for each item whether the client had lawful access in the ordinary course of their duties.
[ ] Instruct the client not to access systems outside their role, not to download in bulk, and not to take documents after the relationship becomes adversarial.
[ ] Screen for protected health information, classified information, privileged material, and trade secrets — removing these can create independent liability regardless of the fraud.
[ ] Assess whether any taking violates a computer access policy or could support a Computer Fraud and Abuse Act theory.
[ ] Where documents are unavailable, plan to prove the claim from the client's percipient knowledge plus the government's own claims data.
[ ] Preserve everything the client lawfully has, in a way that documents the chain of custody.
[ ] Identify witnesses who can corroborate, and their likely willingness.

Why it matters, and the traps. Courts have divided on whether public policy protects a relator's removal of employer documents. Some have protected reasonable, targeted taking directly relevant to the fraud; others have not, and have permitted counterclaims. There is no safe general rule, and the downside is severe: the relator can be terminated for cause, sued, and — with PHI or classified material — exposed criminally.

The safest posture is that the relator takes nothing further and relies on what they lawfully hold, what they personally observed, and what the government can pull from its own systems. Say that in the first meeting, in writing.

Phase 3 — Screen the bars

[ ] First to file. § 3730(b)(5). Search public dockets for unsealed related actions, and understand that a sealed earlier complaint is invisible — which is an argument for filing promptly rather than perfecting.
[ ] Public disclosure. § 3730(e)(4)(A). Search for prior disclosure in: federal criminal, civil, or administrative hearings where the government was a party; federal reports, hearings, audits, or investigations; and the news media.
[ ] Note the 2010 narrowing — state and local reports no longer trigger the bar for post-amendment conduct.
[ ] If a public disclosure exists, establish original source status: prior voluntary disclosure to the government, or knowledge that is independent of and materially adds to the disclosed allegations plus voluntary pre-filing disclosure. § 3730(e)(4)(B).
[ ] Government action bar. § 3730(e)(3) — is the conduct already the subject of a civil suit or administrative civil money penalty proceeding in which the government is a party?
[ ] Limitations. § 3731(b): six years from the violation, or three years after the responsible government official knew or should have known, capped at ten years. Note Cochise Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S. 262 (2019), which makes the three-year prong available to relators in declined cases.
[ ] Identify the earliest and latest conduct and compute the recoverable period.

Why it matters, and the traps. The bars end more qui tam cases than the merits do. Screen them before investing in the complaint, and plead around the public disclosure bar affirmatively — since 2010 it is non-jurisdictional and is raised on a Rule 12(b)(6) motion, which means the complaint should establish original source status on its face.

Phase 4 — Build the theory

[ ] Name the liability provision: presentment under § 3729(a)(1)(A), false record under (B), conspiracy under (C), or reverse false claim under (G).
[ ] Name the falsity theory: factual falsity, express certification, implied certification, worthless services, or fraud in the inducement.
[ ] If implied certification, satisfy Escobar's two conditions: specific representations in the claim (billing codes usually supply these), and a failure to disclose noncompliance that makes them misleading half-truths. Universal Health Services, Inc. v. United States ex rel. Escobar, 579 U.S. 176, 190 (2016).
[ ] Confront materiality directly. Is the requirement an express condition of payment? Does the government consistently deny claims for this noncompliance? Has the government paid with knowledge of this practice? Id. at 194–95.
[ ] Build the subjective scienter case from the defendant's own documents — internal reports, compliance memos, emails expressing doubt. United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739 (2023), made the inquiry subjective, so the defendant's actual belief is the target.
[ ] Screen for an Anti-Kickback Statute theory. 42 U.S.C. § 1320a-7b(g) makes a claim resulting from an AKS violation a per se false claim — usually an easier case than proving clinical judgment was wrong.
[ ] Screen for a Stark theory, which is strict liability. 42 U.S.C. § 1395nn.
[ ] Screen for a reverse false claim based on a retained overpayment past the sixty-day deadline. 42 U.S.C. § 1320a-7k(d).

Why it matters, and the traps. The medical-necessity theory requires proving a physician's clinical judgment was wrong — contestable expert testimony on both sides. The kickback theory requires proving the structure of a compensation arrangement — documents. Where both are available, lead with the documentary one.

Materiality is where post-Escobar cases die. If the government audited this practice and continued paying, say so in the disclosure statement and explain why it does not defeat the claim. Government lawyers will find it anyway.

Phase 5 — Quantify

[ ] Estimate the number of affected claims and the per-claim overpayment.
[ ] Compute actual damages, then treble. § 3729(a)(1).
[ ] Compute the penalty stack at the current per-claim range under 28 C.F.R. § 85.5, checking the applicable range for each year at issue.
[ ] Identify the data source the government can use to test the estimate — the claims systems, the cost reports, the encounter data.
[ ] Assess whether statistical sampling and extrapolation will be needed and whether the circuit permits it for liability as well as damages.
[ ] Assess the defendant's ability to pay and whether a judgment would force insolvency, which affects the government's appetite.
[ ] Note the Bornstein sequence: treble first, then credit compensatory payments. United States v. Bornstein, 423 U.S. 303 (1976).

Phase 6 — Venue and circuit

[ ] Confirm venue under § 3732(a) — any district where the defendant resides, transacts business, or where any act proscribed by § 3729 occurred.
[ ] Assess the circuit's Rule 9(b) standard: does it require representative false claims with dates and amounts, or accept reliable indicia of submission?
[ ] Assess whether the circuit treats Escobar's two conditions as required or merely sufficient.
[ ] Assess the circuit's position on causation under AKS § 1320a-7b(g) — but-for or looser.
[ ] Assess the circuit's treatment of the Excessive Fines Clause as a limit on penalty stacks.
[ ] Consider where the United States Attorney's Office has an active health care fraud or contract fraud unit — investigative capacity affects intervention.

Why it matters, and the traps. A clinical-side relator without billing data may satisfy a flexible circuit's pleading standard and fail a strict one. This is a real and legitimate venue consideration, and it should be decided before drafting.

Phase 7 — Sequence the retaliation claim

[ ] Identify the protected activity: lawful acts in furtherance of an FCA action, or other efforts to stop a violation, including internal complaints. § 3730(h)(1).
[ ] Confirm the employer knew of the protected activity.
[ ] Document the adverse action and its timing.
[ ] Calendar the three-year limitations period. § 3730(h)(3).
[ ] Recognize that the retaliation claim is filed publicly and may reveal the sealed qui tam.
[ ] Coordinate with the government before filing it.
[ ] Screen for parallel protections — Sarbanes-Oxley § 806, 18 U.S.C. § 1514A; state whistleblower statutes; and any applicable OSHA-administered statute.
[ ] Note the relief: reinstatement with seniority, two times back pay with interest, and special damages including fees. § 3730(h)(2).

See Damages in Employment Litigation: Back Pay, Statutory Caps, and Punitive Awards.

Phase 8 — Draft the complaint

[ ] Plead the scheme chronologically with named actors and dates.
[ ] Plead representative false claims with as much specificity as available — dates, amounts, codes, identifiers.
[ ] Plead each element separately: falsity, scienter, materiality, and presentment or causation.
[ ] Plead materiality affirmatively, addressing the Escobar factors.
[ ] Plead subjective scienter with the defendant's own statements.
[ ] Plead facts establishing original source status if any public disclosure exists.
[ ] Plead each defendant's conduct separately — group pleading fails Rule 9(b).
[ ] Include the retaliation count only if the sequencing analysis in Phase 7 supports it.
[ ] Include parallel state false claims act counts where applicable, and confirm each state's own filing and service requirements.
[ ] Do not attach documents that would themselves violate a confidentiality obligation or disclose protected information.

See Drafting a Federal Civil Complaint: A Practical Checklist.

Phase 9 — Draft the written disclosure statement

[ ] Understand that this document, not the complaint, drives the intervention decision.
[ ] Narrate the scheme for a reader who has never seen the industry — plain language, no jargon.
[ ] Identify every witness and what each knows, with contact information where available.
[ ] Index the documentary evidence and describe how each item was lawfully obtained.
[ ] Quantify the loss with a stated methodology.
[ ] Identify the government data that can confirm the theory, by system and field.
[ ] Address the anticipated defenses — materiality, scienter, the bars — candidly, and explain why they fail.
[ ] Explain the relator's role and credibility, including anything unfavorable, because the government will find it.
[ ] Offer the relator's continued cooperation specifically: document interpretation, witness identification, industry translation.

Why it matters, and the traps. Relators' counsel who treat the disclosure statement as a formality lose intervention decisions that better presentation would have won. Line attorneys and agents decide whether to open an investigation based on this document. Write it as an investigative memorandum, not as a brief.

Phase 10 — File and serve

[ ] File the complaint in camera and under seal. § 3730(b)(2).
[ ] Confirm the clerk's local procedure for sealed qui tam filings — it varies by district and getting it wrong can inadvertently unseal.
[ ] Do not serve the defendant.
[ ] Serve the complaint and disclosure statement on the United States Attorney for the district and on the Attorney General, per Federal Rule of Civil Procedure 4(i) and the district's requirements.
[ ] Confirm receipt in writing and identify the assigned Assistant United States Attorney.
[ ] File parallel state actions in accordance with each state's own procedure and service rules.
[ ] Calendar the 60-day response date, expecting extensions.
[ ] Instruct the client, again and in writing, on the seal obligation.

Why it matters, and the traps. State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, 580 U.S. 26 (2016), holds that a seal violation does not mandate dismissal — but it damages the relationship with the government at exactly the moment that relationship matters most, and courts weigh bad faith.

Phase 11 — Work the seal period

[ ] Establish a single point of contact with the government team.
[ ] Make the relator available for interviews, prepared each time.
[ ] Respond to requests for document interpretation and industry context promptly.
[ ] Identify additional witnesses as the investigation develops.
[ ] Expect civil investigative demands to issue under 31 U.S.C. § 3733 — documents, interrogatories, and oral testimony, pre-suit.
[ ] Monitor for a parallel criminal referral and its consequences for the civil timeline.
[ ] Do not amend the complaint without coordinating with the government.
[ ] Track the relator's employment situation and be prepared for retaliation.
[ ] Update the client on extensions honestly, each time.

Phase 12 — The intervention decision

[ ] If the government intervenes: it takes primary responsibility, § 3730(c)(1); the relator remains a party with participation rights subject to limits under § 3730(c)(2)(C)–(D).
[ ] Negotiate the relator's role going forward and the flow of information.
[ ] If the government partially intervenes, decide whether to pursue the declined allegations.
[ ] If the government declines: decide whether to proceed under § 3730(c)(3), knowing the relator funds everything.
[ ] For a declined case, reassess: litigation budget, the defendant's likely characterization of the declination, and the higher 25%–30% share under § 3730(d)(2).
[ ] In either case, serve the complaint on the defendant only after the court unseals and orders service.

Phase 13 — The dismissal risk

[ ] Recognize that the government may move to dismiss over the relator's objection under § 3730(c)(2)(A), including by intervening later for that purpose. United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023).
[ ] Understand the applicable standard is Federal Rule of Civil Procedure 41(a), under which the government prevails in all but the most exceptional cases.
[ ] Maintain the relationship with the government throughout a declined case — a relator pursuing a theory the government considers meritless invites a dismissal petition from the defendant.
[ ] Preserve the right to notice and a hearing on any dismissal motion.

Phase 14 — Litigating a declined case

[ ] Budget realistically — expert-intensive, document-intensive, and multi-year.
[ ] Consider litigation funding, with attention to privilege, control, and the ethics rules.
[ ] Prepare for aggressive Rule 9(b) and materiality motions.
[ ] Seek discovery from the government on payment practices for the materiality defense — expect resistance and a deliberative process privilege fight.
[ ] Plan the sampling and extrapolation methodology early, with an expert.
[ ] Prepare for counterclaims against the relator — for breach of contract, breach of duty, or conversion of documents — and note that counterclaims for indemnification or contribution are generally barred, while independent claims may proceed.

See Federal Civil Discovery: Mastering the Tools, Rules, and Pitfalls and Challenging an Expert Under Daubert and Rule 702: A Practical Checklist.

Phase 15 — Settlement

[ ] Confirm that dismissal requires the written consent of the court and the Attorney General. § 3730(b)(1).
[ ] In an intervened case, assert the relator's right to object to a proposed settlement and to a hearing on fairness, adequacy, and reasonableness. § 3730(c)(2)(B).
[ ] Negotiate the relator's share separately, documenting the relator's contribution: what the government would not have known, the witnesses identified, the documents supplied, and the time given.
[ ] Review the scope of the release — settlements typically release only specified conduct and reserve criminal and administrative remedies.
[ ] For health care defendants, understand the corporate integrity agreement the OIG will require, whose compliance cost frequently exceeds the payment.
[ ] Confirm attorney's fees and costs are paid by the defendant under § 3730(d), and negotiate them as a separate line.
[ ] Address the relator's employment claims — reinstatement, separation, references, and any non-disparagement language, which must not restrict reporting to the government.

See Drafting and Closing a Settlement Agreement: A Practical Checklist.

Phase 16 — The award

[ ] Advise on tax treatment: relator awards are ordinary income. Attorney's fees paid by the defendant under the fee-shifting provision are generally treated favorably under the above-the-line deduction for fees in whistleblower actions, 26 U.S.C. § 62(a)(21) — confirm the current provision and its scope with tax counsel.
[ ] Identify liens and offsets — child support, tax liens, and government claims against the relator.
[ ] Confirm the timing of payment and whether it is contingent on collection from the defendant.
[ ] Document the fee calculation and obtain the client's written approval.
[ ] Advise on the public record — the settlement and often the relator's identity become public on unsealing.

See Business Taxation: A Comprehensive Guide to Entity Choice and Federal Income Tax.

Phase 17 — The relator's life afterward

[ ] Plan for industry consequences, which are real regardless of the legal protections.
[ ] Assess whether reinstatement is actually desirable or whether a negotiated separation with front pay is better.
[ ] Preserve the retaliation claim if it has not been resolved.
[ ] Address licensure and credentialing consequences where the relator is a professional.
[ ] Consider anonymity where the parallel program permits it — the SEC program allows anonymous filing through counsel, 15 U.S.C. § 78u-6, while the FCA does not.

Phase 18 — If you represent the defendant instead

[ ] On receiving a civil investigative demand, institute a litigation hold immediately and assume a sealed complaint exists.
[ ] Negotiate CID scope and sequencing.
[ ] Seek a presentation meeting with the line attorneys during the investigation, when declination is still possible — this is the highest-leverage moment in the case and it is regularly missed.
[ ] Build the materiality record: agency audits that found the practice and continued paying, contemporaneous guidance, industry practice.
[ ] Assess the advice-of-counsel decision carefully — asserting it waives privilege over the subject matter, and after SuperValu the temptation is stronger.
[ ] In health care, run the sixty-day overpayment clock independently of the investigation's convenience.
[ ] Consider self-disclosure through the applicable protocol, weighing credit against admission.

See Responding to a Government Subpoena or Investigation: A Practical Checklist.

Worked example — Dr. Cross

Phase 1. Engagement signed. Dr. Cross is instructed to take nothing further and to stop discussing the matter with the two colleagues she had confided in.

Phase 2. She holds: her own clinical notes; the departmental compensation policy she received as a member of the department; three peer-review summaries she received in her role on the quality committee; and a memo from the compliance office responding to a concern she raised in 2024. All lawfully held. She does not have billing records, and she is instructed not to pull them.

Phase 3. No prior public disclosure found. A state health department survey two years ago noted a high stent volume but did not allege fraud — and under the 2010 amendment a state report is not a qualifying public disclosure for conduct after the amendment. Limitations reach back six years, possibly ten under § 3731(b)(2).

Phase 4. Two theories. Medical necessity — hard, expert-dependent. Compensation arrangement under the AKS — documentary, and § 1320a-7b(g) converts it into a per se false claim. Lead with the second. The 2024 compliance memo is the scienter evidence: it acknowledges the concern and records no action.

Phase 5. Estimated 1,900 affected procedures over four years, average overpayment $9,400. Actual damages $17.9 million; trebled $53.6 million; penalties at the applicable range add $25 to $50 million.

Phase 6. The district sits in a circuit with the more flexible Rule 9(b) standard, which matters because Dr. Cross has no billing data.

Phase 7. Her internal complaint in 2024 is protected activity and the employer knew of it. No adverse action yet. The retaliation claim is held back so a public filing does not reveal the seal, with the three-year clock calendared.

Phases 9–10. The disclosure statement runs 34 pages plus an evidence index, and it identifies the specific Medicare claims fields that will confirm the volume pattern. Filed under seal; served on the U.S. Attorney and the Attorney General.

Phase 11. The seal is extended four times over twenty months. CIDs issue to Arden Valley. Dr. Cross is interviewed three times.

Phase 12. The government intervenes as to the AKS-based claims and declines as to the standalone medical necessity allegations.

Filing a Qui Tam Complaint Under Seal: A Relator's Checklist

Phase 1 — The first conversation

Phase 2 — Evidence, and its limits

Phase 3 — Screen the bars

Phase 4 — Build the theory

Phase 5 — Quantify

Phase 6 — Venue and circuit

Phase 7 — Sequence the retaliation claim

Phase 8 — Draft the complaint

Phase 9 — Draft the written disclosure statement

Phase 10 — File and serve

Phase 11 — Work the seal period

Phase 12 — The intervention decision

Phase 13 — The dismissal risk

Phase 14 — Litigating a declined case

Phase 15 — Settlement

Phase 16 — The award

Phase 17 — The relator's life afterward

Phase 18 — If you represent the defendant instead

Worked example — Dr. Cross

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