A. If the Commonwealth proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action. Such person shall have the right to continue as a party to the action, subject to the limitations of this section.
§ 8.01-216.6.Rights of private plaintiff and Commonwealth.
Chapter 3. Actions · Article 19.1. Virginia Fraud Against Taxpayers Act · Last amended 2007 · Last verified July 16, 2026
In one sentenceSection 8.01-216.6 sets the ground rules once a qui tam case is underway: who controls it if the Commonwealth intervenes, when the Commonwealth may dismiss or settle over the private plaintiff’s objection, how each side’s participation can be limited, and how the Commonwealth may instead pursue an alternate remedy.
Full Text of § 8.01-216.6
B. The Commonwealth may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Commonwealth of the filing of the complaint and the court has provided the person with an opportunity for a hearing on the complaint.
C. The Commonwealth may settle the action with the defendant notwithstanding the objections of the person initiating the action if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, such hearing may be held in camera. The Commonwealth may, for good cause shown, move the court for a partial lifting of the seal to facilitate the investigative process or settlement.
D. Upon a showing by the Commonwealth that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the Commonwealth's prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person's participation, such as (i) limiting the number of witnesses the person may call; (ii) limiting the length of the testimony of such witnesses; (iii) limiting the person's cross-examination of witnesses; and (iv) otherwise limiting the participation by the person in the litigation.
E. Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.
F. If the Commonwealth elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action. If the Commonwealth so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts at the Commonwealth's expense. When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the Commonwealth to intervene at a later date upon a showing of good cause.
G. Whether or not the Commonwealth proceeds with the action, upon a showing by the Commonwealth that certain actions of discovery by the person initiating the action would interfere with the Commonwealth's investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay such discovery for a period of not more than sixty days. Such a showing shall be conducted in camera. The court may extend the sixty-day period upon a further showing in camera that the Commonwealth has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings.
H. Notwithstanding the provisions of subsection B of § 8.01-216.5, the Commonwealth may elect to pursue its claim through any alternate remedy available to the Commonwealth, including any administrative proceeding to determine a civil money penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the action shall have the same rights in such proceeding as such person would have had if the action had continued under this section. Any finding of fact or conclusion of law made in such other proceeding that has become final shall be conclusive on all parties to an action under this article. For purposes of this subsection, a finding or conclusion is final if it has been finally determined on appeal to a court of competent jurisdiction of the Commonwealth, if the time for filing an appeal with respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to judicial review.
Plain-English Summary
Section 8.01-216.6 divides control of a qui tam action between the Commonwealth and the private plaintiff who filed it. If the Commonwealth intervenes, it takes primary responsibility for prosecuting the case and is not bound by the private plaintiff’s acts, though that plaintiff keeps the right to remain a party, subject to the limits the rest of the section imposes. The Commonwealth may dismiss the action over the plaintiff’s objection, but only after notifying the plaintiff of the dismissal request and giving the plaintiff an opportunity for a hearing. It may likewise settle over the plaintiff’s objection if the court, after a hearing that may be held in camera on good cause shown, finds the settlement fair, adequate, and reasonable.
The court can restrict either side’s role in the litigation. On the Commonwealth’s showing that the private plaintiff’s unrestricted participation would interfere with, delay, or duplicate the Commonwealth’s prosecution, or amount to harassment, the court may limit the number and length of witnesses the plaintiff calls, restrict cross-examination, or otherwise curtail the plaintiff’s role. On the defendant’s showing that the plaintiff’s participation would harass the defendant or impose undue burden or expense, the court may impose similar limits.
If the Commonwealth declines to proceed, the private plaintiff has the right to conduct the action, and the Commonwealth, if it asks, is entitled to copies of all pleadings and deposition transcripts at its own expense; the court may still let the Commonwealth intervene later on a showing of good cause. Whether or not the Commonwealth has proceeded, it can ask the court to stay the plaintiff’s discovery for up to 60 days — extendable on a further in camera showing of diligence — where that discovery would interfere with a parallel criminal or civil investigation arising from the same facts.
Finally, the Commonwealth is not limited to the courtroom. It may instead pursue its claim through an alternate remedy, such as an administrative proceeding to assess a civil penalty. The private plaintiff keeps the same rights in that proceeding as under this article, and any final finding of fact or conclusion of law made there binds all parties to a later action under the article.
Frequently Asked Questions
Who runs the litigation once the Commonwealth intervenes in a qui tam case?
The Commonwealth takes primary responsibility for prosecuting the action and is not bound by the private plaintiff’s acts, though the plaintiff keeps the right to remain a party subject to the limits the section allows the court to impose.
Can the Commonwealth dismiss a qui tam case over the plaintiff’s objection?
Yes, but only after notifying the plaintiff that it filed the complaint and giving the plaintiff an opportunity for a hearing before the court rules on the dismissal.
Can the private plaintiff’s participation in the trial be restricted?
Yes, in either direction. The court may limit the plaintiff’s witnesses, testimony, or cross-examination on the Commonwealth’s showing of interference or harassment, and separately on the defendant’s showing that the plaintiff’s participation would cause harassment or undue burden.
What happens if the Commonwealth chooses not to intervene at all?
The private plaintiff has the right to conduct the action. The Commonwealth may still request copies of pleadings and deposition transcripts at its own expense, and the court may allow the Commonwealth to intervene later for good cause.
Can the Commonwealth pursue its claim outside of the qui tam lawsuit entirely?
Yes. Subsection H lets the Commonwealth pursue an alternate remedy, such as an administrative proceeding, while the private plaintiff keeps equivalent rights there, and any final findings in that proceeding are binding on the parties to the qui tam action.
Amendment History
2002, c. 842; 2007, c. 569.
Source & verification. Section text and amendment history are
reproduced verbatim from the Code of Virginia, published by the
Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026.
· Official source
Also known as: virginia qui tam whistleblower rights during litigationcommonwealth dismiss or settle qui tam case virginialimits on whistleblower participation virginia false claims actvirginia false claims act discovery stayvirginia fraud against taxpayers act alternate remedy