FCA Practice Guide for Attorneys
This guide is written for attorneys evaluating or handling False Claims Act matters — whether you are vetting a potential relator client or building out a qui tam practice. It summarizes the procedural mechanics and strategic considerations that distinguish FCA litigation from ordinary civil work.
What This Page Covers
Vetting relators and claims, pleading with particularity under Rule 9(b), filing under seal with a persuasive disclosure statement, working the intervention decision, economics of the relator share, and building referral relationships.
General information for attorneys, not legal advice or a substitute for independent research, and current for 2025–2026.
Vetting the Relator and the Claim
Before anything else, assess the strength and posture of the potential case. Key threshold questions determine whether filing is worth the investment.
Federal or State Funds
Does the conduct involve federal (or state) funds? Purely private fraud generally falls outside the qui tam framework, though parallel state false claims statutes may apply.
First-to-File Risk
Is the client likely first to file? Because sealed cases are invisible, first-to-file risk can never be fully eliminated, but it can be assessed through the facts and the client's account.
Public Disclosure Bar
Is the client's knowledge first-hand and non-public, or is it vulnerable to the public disclosure bar? Is the client a plausible original source if relevant disclosures already exist?
Evidence and Document Handling
Evaluate the evidence realistically. Specific documents — billing data, contracts, internal communications — make a far more viable case than narrative suspicion. Counsel the client early about lawful document handling and the risks of taking protected materials.
Pleading With Particularity
FCA complaints sound in fraud and must satisfy Rule 9(b)'s heightened pleading standard.
Who, What, When, Where, and How
Courts expect the "who, what, when, where, and how" of the alleged scheme, and many circuits look for representative false claims or reliable indicia that false claims were actually submitted. A complaint that describes a fraudulent scheme in the abstract, without connecting it to the submission of claims, is vulnerable to dismissal.
Connect Scheme to Claims
Build the pleading around the mechanism by which false claims reached the government. Identify representative claims with dates, amounts, and the manner in which they were false.
Materiality Post-Escobar
Materiality is a live battleground. Plead facts showing the misrepresentation was capable of influencing the government's payment decision — and anticipate the defense that the government continued paying despite knowledge.
Pattern Allegations
Identify representative claims with specificity while preserving arguments about broader patterns. Generic allegations fail; particularized claims with reliable indicia of a systematic scheme survive.
Filing Under Seal and the Disclosure Statement
The complaint is filed under seal and served on the government, not the defendant. Simultaneously, you provide a written disclosure statement containing substantially all material evidence.
Treat the Disclosure as Advocacy
Treat the disclosure as an advocacy document: it is your first and best chance to persuade the government the case is worth its attention. A thorough, well-organized, document-supported disclosure materially improves the odds of intervention.
Seal Extensions Are Routine
The seal runs 60 days by statute but is routinely extended on the government's motion. Manage your client's expectations: the seal period commonly stretches past a year.
Seal Obligations
Ensure clients understand that disclosing the lawsuit — even to family members — can constitute a seal violation. Document seal instructions and obtain written acknowledgment from clients.
Government Service Requirements
Serve copies on the Department of Justice and relevant agency inspectors general. Failure to follow procedural requirements precisely can result in dismissal or reduced awards.
Working the Intervention Decision
Your relationship with the assigned line attorney and agency investigators during the seal shapes the case.
Be Responsive
Be responsive, supply additional analysis, and make your client available. Intervention dramatically improves recovery odds and is the outcome to work toward.
Investigative Support
Be prepared to assist with subpoena drafting, witness preparation, and document analysis. Government attorneys have large caseloads; analytical support from relator's counsel adds value.
If the Government Declines
Counsel the client candidly on the economics and risks of proceeding alone — declined cases carry a higher relator share but also far higher cost and risk. It depends on the strength of evidence, the defendant's resources, and the client's risk tolerance.
Economics and the Relator Share
Relator shares run 15–25% in intervened cases and 25–30% in declined cases. Factor the realistic share, the multi-year timeline, and contingency-fee structure into your engagement and client counseling.
Calibrate Expectations
Review patterns and outcomes across our settlement case studies to calibrate expectations. Not all cases intervene, and not all intervened cases settle at the high end of damages.
Multi-Year Commitment
Qui tam cases commonly run two to five years from filing to resolution. Factor the timeline into fee arrangements and client counseling about employment and personal considerations.
Contingency Structure
Most relator representations are contingency-based. Attorney fees are typically paid from the relator share according to the engagement agreement after the government disburses the award.
Share Disputes
If disputes arise about the appropriate percentage within the statutory range, additional proceedings may be necessary. Plead and document the relator's contribution throughout the case.
Frequently Asked Questions
What pleading standard applies to FCA complaints?
Rule 9(b)'s particularity requirement applies because the claims sound in fraud. Most courts expect detail connecting the scheme to actual submitted claims.
How important is the disclosure statement?
Very. It is your primary vehicle for persuading the government to intervene and should be treated as a thorough, evidence-backed advocacy document.
How long does the seal typically last?
Sixty days by statute, but extensions are routine and the period frequently exceeds a year in practice.
Should a client proceed if the government declines?
It depends on the strength of evidence, the defendant's resources, and the client's risk tolerance. Declined cases offer a higher share but greater cost and risk.
Can I co-counsel with a dedicated qui tam firm?
Frequently, yes. Co-counsel and referral arrangements are common given the specialized nature of FCA litigation.
Building Referral Relationships
Many relators first approach a generalist or employment attorney. If FCA work is not your core practice, a reliable referral network serves your clients well — and conversely, qui tam practitioners welcome well-vetted referrals.
Our attorney directory supports that ecosystem. Explore next: Settlement Case Studies, Legal Glossary, or Contact Us.