The California FCA statute itself provides useful guidance on this issue. Government Code section 12652(c)(6) provides that after a private citizen brings suit under the California False Claims Act, the state or political subdivision whose funds are at issue investigates the claims, and can elect or decline to intervene in the case. If the state intervenes, “the action shall be conducted by the Attorney General and the seal shall be lifted.” Gov. Code § 12652(c)(6)(A). If the state declines to intervene, “the seal shall be lifted and the qui tam plaintiff shall have the right to conduct the action.” Gov. Code § 12652(c)(6)(B).
Gov. Code § 12652(e)(1) explains the prosecution of actions in which the state has intervened: “If the state or political subdivision proceeds with the action, it shall have the primary responsibility for prosecuting the action.” The same section also explains the rights of the qui tam plaintiff in an intervened case: “The qui tam plaintiff shall have the right to continue as a full party to the action.” Id. (emphasis added). The state may also dismiss or settle claims over the objection of the qui tam plaintiff. See Gov. Code §§ 12652(e)(2)(A), (B).
Gov. Code § 12652(f)(1) deals with the prosecution of actions in which the state elects not to intervene: “If the state or political subdivision elects not to proceed, the qui tam plaintiff shall have the same right to conduct the action as the Attorney General or prosecuting authority would have had if it had chosen to proceed under subdivision (c).” (emphasis added).
Case law confirms that in cases of so-called “partial” intervention, the qui tam plaintiff can continue with the non-intervened theories or causes of action. For example, as the District Court for the Western District of Louisiana explained:
With regard to whether the government can partially intervene as it contends it did, the defendants correctly point out the clear terms of sub-paragraph (4) of the statute do not provide for a “partial intervention.” However, subsequent jurisprudence in this circuit has recognized that the government can partially intervene, and when it does so, the relator is left to proceed against the defendants against whom the government has not intervened or to proceed with claims the government has chosen not to pursue.
United States ex rel. Mallavaru v. Acadiana Cardiology, LLC et al. (W.D. La. August 16, 2010) Case No. 04-732, 2010 U.S. Dist. LEXIS 104718 at *22-23 (emphasis added); see also United States ex rel. Allen v. Guidant Corp. (D. Minn. March 14, 2012) Case No. 11-22 (DWF/AJB), 2012 U.S. Dist. LEXIS 34192 (partial intervention by government); United States ex rel. Lockheed Martin Corp. (S.D. Miss. March 12, 2010) Case No. 1:09CV324-HSR-JMR, 2010 U.S. Dist. LEXIS 23307 at *6 (denying dismissal motion of defendant not named in government intervention); United States ex rel. O’Keefe v. McDonnell Douglas Corp. (E.D. Mo. 1996) 918 F. Supp. 1338, 1347 (relator allowed to proceed with claims not asserted by government).
Thus, when the government elects to “partially intervene,” the state “shall have the primary responsibility for prosecuting” those claims on which it intervenes, and the qui tam plaintiff “shall have the right to continue as a full party.” Gov. Code § 12652(e)(1). For the non-intervened claims and defendants, the qui tam plaintiff “shall have the right to conduct the action.” Gov. Code § 12652(f)(1).
Justin T. Berger is a Partner at Cotchett, Pitre & McCarthy, LLP, where he handles high-profile cases of corporate fraud, including representing whistleblowers in qui tam actions under the federal and California False Claims Acts ...