Criminal Law Te Dodd-Frank Financial Reform Act, passed in July
of 2010, implemented yet further changes to the FCA. One such change included the creation of a uniform three-year statute of limitations for retaliation claims.22
Te Dodd-
Frank Act also corrected drafting errors in the 2009 FERA amendments which had inadvertently minimized the breadth of the anti-retaliation provision of the FCA.23
Damages Te FCA allows the government to recover treble the
amount of damages due, as well as providing for penalties and fees for the relator’s attorneys in qui tam cases. Since wrongdoers face the threat of having to repay more than the amount stolen, due to the ability to recover treble damages and penalties, the FCA deters fraud against the government. Its impact on the federal “fisc” has been enormous, resulting in the recovery of more than $27 billion since 1986.24
approximately 76 percent of the year’s recovery came from relator-initiated qui tam lawsuits and since 1986, relators have received more than $2.8 billion in rewards.25
22 Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, sec. 1079A, 124 Stat 1379 (2010).
23 Id. 24 Press Release, U.S. Department of Justice, Department of Justice Recovers $3 Billion in False Claims Cases in Fiscal Year 2010 (November 22, 2010), at
http://www.justice.gov/opa/pr/2010/ November/
10-civ-1335.html.
25 Id. A key provision in the FCA remains the relator’s entitlement
to a sizable portion of the recovery. Significantly, the relator is entitled to 15-25 percent of the recovery in cases in which the government intervenes26 cases.27
and 25-30 percent in declined Since the relator’s reward derives from treble damages, In 2010,
the relator’s share can be sizable. For example, in October 2010, the United States negotiated a $750 million settlement with GlaxoSmithKline (GSK), following a lawsuit alleging that GSK manufactured and distributed certain adulterated drugs from one of its plants in Puerto Rico. Te relator received approximately $96 million as her share of the federal and state recoveries.28 Such enormous relator awards, however, are not the norm. Te mean FCA case settles for about $2 million—meaning half settle for more and half for less. At a current relator share average of about 16 percent, that means that half of all relators in cases with recoveries receive awards of less than $320,000. Some FCA opponents focus on the most bountiful
rewards to complain that FCA cases harm the federal treasury. But because the government can itself recover treble damages plus penalties, the net recovery to the government
26 31 U.S.C. § 3730(d)(1). 27 31 U.S.C. § 3730(d)(2). 28 See Press Release, U.S. Department of Justice, GlaxoSmithKline to Plead Guilty & Pay $750 Million to Resolve Criminal and Civil Liability Regarding Manufacturing Deficiencies at Puerto Rico Plant (October 26, 2010), at
http://www.justice.gov/opa/pr/2010/October/10-civ-1205.html (last viewed Mar. 30, 2011).
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Trial Reporter / Summer 2011 25
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