Is Finality Still Useful in False Claims Act Litigation?

All of us were treated recently to the latest statistics from the Department of Justice for 2025.  By all accounts it was a record year for both the Department of Justice and relators, over $6.8 billion in total recoveries, including some impressive resolutions obtained in non-intervened cases. By my count, intervened resolutions were in excess of an unprecedented $3 billion. After I took a close look at the specifics of the non-intervened cases and spoke with a number of people involved in some of those cases, I wondered to myself whether enough genuine efforts were made to attempt to resolve non-intervened FCA cases pretrial, during trial or even post judgment.  The anecdotal data I received from some of the litigants with whom I spoke suggested fulsome efforts at resolution simply did not occur.  Having been on all sides of this issue, I know how difficult it can be to drop your sword and speak about settlement.  At times, years of contentious litigation cloud the collective judgment and get in the way of any resolution. Long litigating parties become conditioned to fight than attempt to devote energy into resolution.  Little more than lip service is given to the process usually to placate judges.

The Law is in Flux

Why do I raise this question?  Because, while some of the financial results by plaintiffs in non-intervened cases are very impressive, and hard fought before judges and juries, virtually all of the non-intervened FCA verdicts are on or will be on appeal.  Post-judgement interest along with attorney fees and costs on both sides continue to accrue at a staggering rate.  Let’s face it, the judicial environment, at district courts and circuit courts and most assuredly the Supreme Court are in a state of flux and, let’s say, evolution.  There are times where one or both parties simply dig in and don’t look at these complex cases through a more practical, and perhaps at times, a more sobering lens.  Appellate courts now offer each side opportunities that didn’t exist when I first started practicing in this area decades ago.

Resolution Can Bring Needed Finality

Last year’s False Claims Act jurisprudence was a mixed bag of substantial wins and devastating losses for both plaintiffs and defendants.  In 2026, multiple litigants are waiting on significant appellate decisions on a host of substantive issues which will prove to be case and perhaps practice determinative.  Some of these cases go back a decade or more.  Past certainty is now replaced by clear uncertainty as plaintiffs and defendants take their chances on multiple judicial bites at the apple.  It seems to me that litigants should step back and take advantage of pivotal junctures in the litigation.  This approach could resolve significant cases and provide certainty for their clients.  Maybe the litigators should appoint “mediators” within their own camps who attempt to make peace with the other side even while the litigation continues.  If direct communication fails, efforts should be made to find the right neutral, the right mediator or the right arbitrator to provide a less combative forum for global resolution.