In fiscal year 2015, more than $1 Billion of the Government’s False Claims Act (FCA) recovery was derived from cases in which the Government declined to intervene. This significant recovery far exceeds the typical, annual recovery that is obtained by relators without Government intervention.

During the past decade, the Government has intervened in approximately 20-24% of the qui tam filings. Despite intervening in less than a quarter of the cases that are filed by relators, the Government has consistently derived more than 90% of its total annual recovery from cases in which it intervenes. The 2015 recovery by relators in cases in which the Government declined intervention represented more than 30% of the Government’s total FCA recovery in 2015, which far exceeds the Government’s typical recovery from cases in which it declines intervention.

This result deviates dramatically from past years and it remains to be seen as to whether it was an aberration or an indication of a shift in trends. However, there are some potential explanations for this exceptional result. First, approximately 40% of the relator-driven recovery ($450 million) was derived from one FCA case that was settled by DaVita. Second, relators are pursuing increasingly novel theories of FCA liability. Third, the FCA relator bar continues to develop and is a well-organized, talented group of attorneys. These attorneys typically pursue cases vigorously on behalf of their clients even if the Government declines to intervene.

It will be interesting to review these results in the coming years to determine if fiscal year 2015 was an aberration or the start of a trend.