This will mark the third blog post in our occasional series dealing with filings under the Virginia Fraud Against Taxpayers Act from across the Commonwealth. In previous posts, I shared the first complaint filed under the VFATA, along with the first “Notice of Intervention” ever filed by the Office of the Attorney General in Commonwealth of Virginia ex rel. Va. Turf Management v. Resolute, et al.
As a recap, and because this blog is intended to be an introduction to qui tam practice, cases proceed in the following manner:
(1) a private party with evidence of wrongdoing hires private counsel, assembles his or her evidence with their counsel, prepares a lengthy, detailed disclosure of all of the material evidence they have, and submits this disclosure to the Virginia Office of the Attorney General. The party initiating the action is often called the “relator” instead of “plaintiff.” At this time, of course, the entire case is not to be discussed with anyone outside the Office of the Attorney General and the relator’s counsel. To do so could derail the entire case.
(2) After serving the disclosure statement and all of the evidence in a relator’s possession, the relator, through counsel, files the Complaint under seal in the appropriate Circuit Court. See my earlier posts on filing under seal for more information here.
(3) The sealed Complaint is served on the Office of the Attorney General, who will then have 120 days to investigate. At the end of the 120 day period, the Commonwealth with do one of three things.
The three choices of the Commonwealth are to either file a “Notice of Intervention” (which means that the AGs office will take over prosecution of the case) or the Commonwealth can move to dismiss the entire case, on the grounds that the Complaint is not well-founded, or for some other reason. Finally, the Commonwealth can file a “Notice of Declination.” If the Commonwealth files a Notice of Declination, it means that they are not going to take over prosecution of the case, but that the relator and his counsel should be allowed to prosecute the case on behalf of the Commonwealth as well as on behalf of the private relator.
As noted earlier, it was not until last year that the Commonwealth filed its first notice of declination, which required an Order to unseal the case and issue the summonses, which you can view here. This is my case, and it is still in litigation, so I am somewhat limited in what I can say here, except that I hope this contributes to the public understanding of the statute.