As explained in our prior posts, statutory penalties under the False Claims Act can reach extraordinary levels. Generally, however, they will not violate the Excessive Fines Clause of the Eighth Amendment to the Constitution. However, in order to avoid raising concerns about the Eighth Amendment, Relators (aka "Qui Tam Plaintiffs") may elect to seek an amount below the minimum statutory penalty. This type of volunatery reduction is referred to in legal terms as a "remittitur." As explained by the Fourth Circuit, relators are free to eschew the bounds of the FCA’s statutory penalty minimums “to attempt to bring the case to a suitable conclusion following the jury’s verdict in [their] favor.” U.S. ex rel. Bunk v. Gosselin World Wide Moving, N.V., 741 F.3d 390, 406 (4th Cir. 2013).

In Bunk, the jury found defendant liable for 9,136 false claims, and the resulting statutory penalty amount would have exceeded $50 million. Id. at 405. The relator nonetheless voluntarily sought less than half of that, $24 million. Id. The trial court rejected the relator’s remittitur, found that the statutory penalty amount “must necessarily exceed more than $50 million,” and “ruled that such an assessment would contravene the Excessive Fines Clause of the Eighth Amendment, and it thus awarded nothing.” Id. at 395. The Fourth Circuit reversed, finding that relator was entitled to voluntarily request less than the statutory minimum:

[Relator’s] effort at a voluntary remittitur was just the sort of arrow that a plaintiff is presumed to possess within his quiver. It must be the rare case indeed where the plaintiff prevails before a jury, then, under no overt influence from the court or the defendant, elects to take a lesser judgment before the ink has dried on the verdict form. Nevertheless, we imagine that the plaintiff’s discretion to willingly do so is virtually unbounded.

Id. The Fourth Circuit further held that although relator obtained no actual damages, the $24 million amount did not violate the Eighth Amendment. Id. at 409-10.

Seeking a remittitur is not necessary or advisable for Relators in most cases, but can be a smart strategy in certain contexts.