AUTHOR'S OPINION: DOJ ATTORNEY MISCONDUCT

DOJ Repeated Informal Policy and Custom = De facto Interventions Without Court's Approval

Another Example:

U.S.A. ex. rel. Robert J. Merena v. SmithKline Beecham Corp., SmithKline Beecham Clinical Laboratories, Inc., Judgement, dated April 8, 1998, Civil Action No. 93-5974, originally filed on July 23, 1997, In The U.S. District Court for the Eastern District of Pennsylvania.

• Footnote # 10 - "The Government did not elect to intervene until after it had agreed with (defendant) on specific settlement terms to resolve all of the claims in the (plaintiffs') cases and long after the (date) agreement in principle had been negotiated."

• Page 30 - "The necessary element under the statute is not an investigation but rather public disclosure. Government investigations are ordinarily not publicly disclosed until they are completed. Merely because a qui tam complaint may make allegations that correspond with or parallel allegations that a Government agency may be investigating, the qui tam action is not barred, nor is the qui tam relator precluded from an appropriate statutory share of any resulting recovery."

• Page 37 - "Were a qui tam action is filed, and the Government intervenes and expands the allegations of the complaint, or settles the action, including broader claims than alleged in the qui tam action, this should not preclude the qui tam relator..from ..receiving the minimum statutory qui tam share of l5 percent of the entire settlement, as well as a percent above the 15 percent minimum up to a maximum of 25 percent "...depending upon the extent to which the person (qui tam Relator) substantially contributed to the prosecution of the action."

• Page 41 - "There is absolutely no evidence on the record before me, beyond the unacceptable waiver argument, to establish any allocation among various claims. The Relators repeatedly sought explanation from the Government, both informally and in discovery, as to the Government's allocation calculations. The Government's only response is, and always has been, that the calculations were based on rational estimates of losses and complex negotiations among various governmental agencies and that the parties and the court are bound to accept the Government's calculations. It seems to me to be almost a "trust us, we are not wrong, we are correct" attitude. The Government tries, at a minimum, to require Relators to prove the allocations are in error without providing Relators with any discovery on the issue, although such discovery was reguested. This I cannot accept. I conclude on this issue, that the Relators are not bound by the allocations assigned by the Government as to the... and the... qui tam allegations. It is the Government that attempts to reduce the individual and total qui tam award shares by assigning particular values to various claims.

• Page 70 - "I am left with the impression that the attorneys in charge of the... investigation, conducted... by the DOJ seek to take far more credit for the overall success of the proceeds.

• Page 72 - "Perhaps the reason the litigation has been presented in this light is because the Government wants to minimize the contributions of the Relators in order to lower their ultimate award.

• Page 72 - "I recognize that some of the arguments presented by the Government attorneys may have been caused by a sincere desire to save as much of the proceeds as possible for the Government. However, an Act of Congress provides for substantial awards in order that persons who acquire first hand knowledge of false claims being presented to the Government will come forth and file meritorious qui tam complaints. The success of this legislation in continuing to achieve its goals can only be assured by unstintingly providing the qui tam awards dictated by Congress irrespective of the size of the awards."