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What is the Average Whistleblower Settlement?
Increasingly there are now many more moving parts in a typical FCA settlement than there once were. It is not unusual to have more than one relator in the case. Sometimes there are co-relators working together and often there are competing relators who may have conflicting interests, particularly over their respective share of any whistleblower award. It is also becoming more common to have multiple defendants in FCA cases, including, individuals and not just the corporations or organizations that they work for. There has also been a noticeable increase in the number of government authorities involved in a given FCA matter. For example, in a Medicaid fraud case there might be 20 or even 30 states participating in the lawsuit.
The issues that have to be addressed in a settlement process have also gotten more complex over time. It is not unusual for the relator to have retaliation, breach of contract or other personal claims against the defendant that have to be resolved and included in the settlement agreement. It is also no longer rare for the government and the relator to disagree over the percentage for the whistleblower award. The trend in recent years has been for the government to push for a number between 15% and 20%, rather than between 20% and 25%, and this has complicated settlement negotiations.
That said there are at least two features about FCA settlements that remain as true today as they were in the past. First, the length of time between the filing of an FCA complaint and the date when the settlement is finalized is measured in years, not months. And second, the vast majority (perhaps 70%-80%) of the FCA cases that are filed conclude without a settlement or judgment in favor of the relator. The unfortunate reality is that the government declines to join in most FCA cases and the ones that relators pursue on a "non-intervened" basis end up being dismissed, either voluntarily or by court order. This is why most successful relators and their attorneys cherish their settlement victories and seldom regard their cases as “just average.”