§ 8.01-216.5.Civil actions filed by private persons; Commonwealth may intervene.

Section 8.01-216.5 opens the Virginia Fraud Against Taxpayers Act to private enforcement. Any person may bring a civil action for a violation of § 8.01-216.3, suing both for themselves and for the Commonwealth, and the case is captioned in the Commonwealth’s name. Once filed, the action can be dismissed only if both the court and the Attorney General consent in writing and state their reasons.

The filing process protects the investigation before the defendant learns of it. The plaintiff must serve the Commonwealth with a copy of the complaint and a written disclosure of substantially all the material evidence and information the plaintiff has. The complaint itself is filed in camera and stays under seal for at least 120 days, and it cannot be served on the defendant until the court orders it. During that window, the Commonwealth may elect to intervene and take over the action.

The Commonwealth can ask the court for good-cause extensions of the sealing period, supported by in camera affidavits, and the defendant does not have to respond to the complaint until 21 days after it is unsealed and served. Before the 120-day period or any extension runs out, the Commonwealth must either proceed with the action — after which the Commonwealth conducts it — or notify the court it declines, at which point the person who filed suit has the right to prosecute the case. Once a person has brought an action under this section, no one but the Commonwealth may intervene or file a related action based on the same underlying facts.