Full opinion text
OPINION VanARTSDALEN, Senior District Judge. A. BACKGROUND 1. Preliminary The basic remaining issue for determination in this complex litigation is the amount to be awarded to the qui tam relators as their share in the proceeds obtained from the defendants in the settlement of the qui tam Civil Actions 93-5974 (Merena action), 95-6958 (Robinson action) and 95-6551 (Spear action). The Government, with the consent of all of the qui tam relators in the three enumerated actions, settled and dismissed with prejudice all three actions that had been filed by the qui tam relators against the defendants, SmithKline Beecham Corporation and SmithKline Beecham Clinical Laboratories, Inc. (SBCL). The qui tam actions were filed under the False Claims Act, 31 U.S.C. §§ 3729-3733. The total amount of the settlement was $325,000,000, plus interest that had accrued on the settlement funds that were deposited in escrow pending final settlement and dismissal of the actions. The accrued interest amounted to $8,976,266.40, making the total recovery $333,976,266.40: The Settlement Agreement expressly provided for dismissal with prejudice of the three above noted qui tam actions, the court retaining jurisdiction over enforcement of the settlement agreement and determination of attorney fees and relators’ share issues. Prior to dismissal, the Government expressly and without limitation intervened in each of the actions pursuant to 31 U.S.C. § 3730(b)(4). The statute provides that if the Government proceeds with an action brought by an individual under the qui tam statute, the qui tam relator shall “receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action or settlement of the claim.” 31 U.S.C. § 3730(d)(1). If that section of the statute is applicable, superficially at least, the qui tam relator/relators should be entitled to a minimum of $50,096,439.96 and a maximum of $83,494,066.60. The separate qui tam relators (hereafter sometimes referred to as the “Consolidated Plaintiffs” or the “Relators”) in all three actions have agreed among themselves as to how they will divide any qui tam share awarded to any or all of them. In addition, the Government has agreed with the Spear qui tam Relators to pay those Relators a qui tam award of 15 percent on an allocated share, including interest, of $13,297,829 of the total settlement proceeds. The Government attributes this sum to the separate allegations contained in the Spear complaint. The Merena and Robinson qui tam Relators agree that this allocated share of the proceeds may be deducted from the total settlement proceeds before determining their respective qui tam share or shares. Thus, only the qui tam share or shares to be paid to the Merena and Robinson Relators remains to be decided in this litigation. 2. Basic Contentions of the Parties The Government contends that in addition to subtracting the amount allocated to the Spear complaint, there also must be subtracted $14,507,107 which was paid out of the total proceeds to various states for losses under the state Medicaid programs resulting from the alleged false claims by SBCL that were included iñ the settlement. In addition, the Government contends that the qui tam Relators are entitled to no share of the proceeds recovered for certain so-called “automated chemistry” false claim allegations that were settled. The Government contends that as of the time of the filing of the qui tam actions, the “automated chemistry” allegations were under active investigation by the Government, had been publicly disclosed in the news media, and the qui tam Relators were not “original sources” of the information. The qui tam Relators dispute each of these contentions and assert that they are entitled to a minimum is percent share of the total amount obtained by the settlement including earned interest less the agreed amount allocated to the Spear complaint allegations. The Government ascribes and allocates the sum of $241,283,471 (including interest) for the so-called “automated chemistry” allegations (see Government’s Exhibit G-108), that the Government claims it recovered as a result of its LABSCAM investigation. The Government contends that the qui tam Relators are entitled to no share of that allocated amount. However, because the Merena and Robinson complaints each made allegations that would, at least arguably, be encompassed within the “automated chemistry” allegations that were settled, the Government now seeks to have all of the “automated chemistry” allegations of the complaints in both 93-5974 and 95-6953 dismissed for lack of jurisdiction and/or failure to be the “first to file” the qui tam action under 31 U.S.C. § 3730(b)(5). The Government seeks presently to have these allegations dismissed even though approximately ten months prior to filing the present motion to dismiss, the Government intervened in both actions without limitation and with the consent of all parties and in conformity with the Settlement Agreement moved the court to enter an order dismissing all three qui tam actions with prejudice. The order was entered on February 24, 1997 (filed document # 33). No appeal has ever been taken by any of the Merena, Robinson or Spear qui tam Relators, nor has there been any request by any of them to reconsider or to vacate the order of dismissal. The issues appear to be, therefore, (1) determination of the total fund upon which a qui tam award to the Merena and/or Robinson qui tam relators should be based and (2) determination of the percentage of that total to be awarded to the qui tam relators. Sub-issues of (1) above, are: (a) whether the qui tam relators are entitled to any proportionate share of the $14,507,-107 distributed to the individual states, (b) whether any of the allegations of the Merena and/or Robinson complaints can and should be dismissed and (c) whether the allocation which the Government assigns to the separate claims is binding on the qui tam relators in determining the total fund upon which they are entitled to receive a proportionate share. In determining the appropriate percentage share, it would appear that this depends, in the words of the statute, solely “upon the extent to which the person [qui tam relator/relators] substantially contributed to the prosecution of the action.” 3. History of the Litigation The three above-captioned qui tam actions were filed under a seal as required by statute by Merena (Civil Action 93-5974), Glenn Grossenbacher and Charles W. Robinson, Jr. (“Robinson”) (Civil Action 95-6953), and Kevin J. Spear, The Berkeley Community Law Center, and Jack Dowden (“Spear”) (Civil Action 95-6551) (collectively “the Consolidated Plaintiffs”) . The Consolidated Plaintiffs brought their respective lawsuits pursuant to the qui tam provisions of the False Claims Act, 31 U.S.C. §§ 3729-3733. After granting multiple requests by the Government to extend the time for the Government to elect whether to intervene and to retain the seal in these qui tam actions, the Government formally intervened in these cases on September 27, 1996 and took over the litigation pursuant to 31 U.S.C. § 3730(b)(4)(A), (c)(1), and (c)(2)(A). The Government, prior to formally intervening, negotiated the settlement with SB CL on behalf of itself and the Consolidated Plaintiffs. An agreement in principle was reached by the parties in February, 1996. I issued an agreed upon Order on February 24, 1997, dismissing with prejudice all the claims settled by the Settlement Agreement and Release (filed document # 33). In that Order I retained jurisdiction over, inter alia, enforcement of the Settlement Agreement and determination of the relators qui tam shares, costs and attorney fees. The settlement funds of $325,000,000 had earlier been placed in a court-supervised interest-bearing escrow account upon the Government’s insistence, pending final execution of the Settlement Agreement. While the settlement proceeds were held in the escrow account, they earned interest and the fund grew from $325,000,000 to $333,976,266.40. On February 24, 1997, as requested by the Government, I ordered that the settlement proceeds together with the earned interest be disbursed immediately from the court-supervised escrow account at the CoreStates Bank. After the funds were disbursed from the interest-bearing escrow account, no additional interest has been earned on the settlement proceeds. On April 1, 1997, I issued an Order directing that, pursuant to 31 U.S.C. § 3730(c)(2)(B), if necessary, a hearing would be held to determine if the proposed settlement was fair, adequate, and reasonable. Such a hearing would allow any interested party to contest the fairness, adequacy, and/or reasonableness of the settlement. On September 18, 1997, the Government and the Consolidated Plaintiffs filed a Stipulation and Proposed Order (filed document # 61) stipulating their “mutual interest in pursuing discussions regarding settlement of relators’ shares of the settlement proceeds under the False Claims Act,” and that the parties were in agreement that there was no need to conduct a hearing to determine the fairness, adequacy, and/or reasonableness of the settlement. An Order was entered to reflect this stipulation. The Consolidated Plaintiffs had expressly consented to the terms of the Settlement Agreement and Release, and the formal agreement was signed and dated on September 25, 1996. Neither the Settlement Agreement, the Release nor the Order of February 24, 1997 made any reference to a specific dollar or percentage allocation for any particular claim or claims made by any of the Consolidated Plaintiffs, or sought to quantify any separate Claim or claims beyond the total settlement figure of $325,000,000. There is no dispute among the Consolidated Plaintiffs as to the fairness, adequacy, and reasonableness of the Settlement Agreement (filed document # 61). As previously noted, the Consolidated Plaintiffs, have agreed among themselves as to how they will divide whatever is awarded as the Relators, qui tam share of the settlement proceeds. What is currently at issue is the exact percentage to be awarded to the Consolidated Plaintiffs and the exact amount of the settlement proceeds upon which that percentage is to be based. At the present time, the only remaining interest SBCL has in this litigation is the issue of attorneys’ fees that may be recoverable by Relators against SBCL. More than six months after the Government and SBCL reached a settlement in principle, and while the Consolidated Plaintiffs complaints remained under a seal, three other plaintiffs (the “Additional Plaintiffs”) filed under seal separate qui tam actions pursuant to the “qui tam” provisions of the False Claims Act, 31 U.S.C. §§ 3729-3733. Dr. William St. John LaCorte filed in the United States District Court for the Eastern District of Louisiana on April 22, 1996. Jeffrey Scott Clausen filed in the United States District Court for the Northern District of Georgia on September 3, 1996, and Donald Miller filed in the United States District Court for the Middle District of Florida on July 15, 1996. All of these cases were transferred by agreement to the Eastern District of Pennsylvania during 1996 and 1997, and docketed in this court as Civil Actions 96-7768 (LaCorte), 97-1186 (Clausen) and 97-3643 (Miller). The Additional Plaintiffs filed Memoran-da in support of their claims to the settlement proceeds, in which they contended that their claims were settled in the Settlement Agreement reached between the Government and SBCL, and that they, therefore, were entitled to a qui tam share in the $325,000,000 settlement (filed documents # 39, # 40, # 41). The original qui tam plaintiffs (the Consolidated Plaintiffs) filed oppositions to the three Additional Plaintiffs’ claims to share in the settlement proceeds (filed documents # 45, # 52). Defendant SBCL took the position that the Settlement Agreement was intended to settle and release all claims asserted in the LaCorte, Clausen, and Miller actions and, in addition, that those actions were barred by the “first-to-file bar” of 31 U.S.C. § 3730(b)(5) by reason of the Consolidated Plaintiffs’ prior filings. The Government contended that three claims raised by La-Corte were not included in the Settlement Agreement and therefore could be separately litigated. On July 23, 1997, 1 issued a Memorandum and Order dismissing all of Clausen’s and Miller’s claims, and all but one of LaCorte’s claims — the urinalysis claim — on the grounds that these claims, in fact, were settled by the Settlement Agreement between the Government and SBCL (filed document # 57). LaCorte’s urinalysis claim was severed from his other claims. Equally important, was my conclusion that Clausen, LaCorte and Miller were barred from seeking any portion of the Relators’ share of the $325,000,000 settlement, based primarily on the “first to file bar” to intervention under 31 U.S.C. § 3730(b)(5). I retained jurisdiction over LaCorte’s severed urinalysis claim, over the enforcement of the Corporate integrity agreement, and over the determination of relators, share issues and the issue of attorneys, fees and costs. LaCorte, Clau-sen and Miller have appealed my dismissal of their claims to the United States Court of Appeals for the Third Circuit, pursuant to Federal Rule of Appellate Procedure 3(a). All three Additional Plaintiffs also filed motions to stay the execution of my Order of July 23, 1997, pursuant to Federal Rule of Appellate Procedure 8(a), pending the outcome of their appeals (filed documents # 60, # 67, # 62). The Consolidated Plaintiffs opposed granting a stay, contending that a stay of the .ongoing proceedings would cause “irreparable delay and further harm to the Consolidated Plaintiffs” by possibly reducing the amount of the Rela-tors’ share of the settlement proceeds. Further, the Consolidated Plaintiffs argued that none of the Additional Plaintiffs had “posted a bond, the prerequisite for obtaining a stay, in order to compensate the Consolidated Plaintiffs for the lost use of their expected relators’ share ... during the lengthy delay occasioned by their appeals” (filed document # 65, Relators’ opposition to motions for stay, p. 2). I denied all of the motions for a stay. I held further, that the Consolidated Plaintiffs were free to move at any time for a hearing for the purpose of determining the amount to be awarded to the Consolidated Plaintiffs for their qui tam share/shares (filed document #80). The Consolidated Plaintiffs filed a motion to deem interest and/or to segregate settlement funds for the purpose of earning interest (filed documents # 53). Relator LaCorte filed a similar motion (filed document # 66). The Consolidated Plaintiffs and Relator LaCorte argued that at least the statutory minimum of the total settlement proceeds should be set aside in escrow for the purpose of earning interest during the pendency of the litigation. The motion requested the court to segregate, or set aside, twenty-five percent (25%) of the $333,976,266.40 of settlement funds (the maximum that could be awarded under the statute). The Consolidated Plaintiffs argued in this motion that they were prejudiced by strategic moves by the Government that resulted, and continue to result, in lengthy delays in the disbursement of their rela-tors’ shares. As a result of these delays, the Consolidated Plaintiffs claimed that they had lost and were losing use-of the money due them and had lost interest they would have earned had the money been deposited into an interest-bearing account at the time of the disbursement from the escrow account. The Consolidated Plaintiffs contended that the Government’s strategic move of repeatedly asking for extensions of time to intervene and to extend the seal period in the qui tam actions unduly prejudiced them in that during these delays, the Consolidated Plaintiffs were forced (and continue to be forced) to engage in months of litigation with the Additional Plaintiffs “who filed their qui tam actions during the latter stages of the protracted seal period.” (filed document # 53, Motion of Consolidated Plaintiffs to Deem Interest or to Segregate Settlement Funds for the Purpose of Earning Interest, p. 6) The Consolidated Plaintiffs contended that the Government could have and should have promptly raised the first-to-file bar against all potential later-filed qui tam actions including the actions of the three Additional Plaintiffs by intervening in the Consolidated Plaintiffs’ actions before the first Additional Plaintiff, LaCorte, filed his suit on April 22, 1996 (after the Government and SB CL had agreed in principle to the settlement). Furthermore, they claimed they were prejudiced by the delays the Additional Plaintiffs caused by way of filing their claims in the first place, and by their subsequent appeals of the dismissals of the Additional Plaintiffs claims. The Consolidated Plaintiffs contended that they have fully complied with the Government’s requests throughout the litigation of these cases, including extensions, of the period of the sealed filings, and resolving any differences that may have existed among themselves, only to be stonewalled by the Government and the Additional Plaintiffs. The 25 percent of the total settlement proceeds which the Consolidated Plaintiffs moved the court to segregate represents the maximum percentage, or share, of the proceeds to which they could be entitled under the False Claims Act, 31 U.S.C. § 3730(d). Although, they conceded that they probably will not be awarded the maximum share, the Consolidated Plaintiffs asserted that setting aside the maximum amount that could be awarded, fully protects the Government. If the Relators’ share is ultimately determined to be less than 25 percent, the Government would collect the balance, including accrued interest on the balance (filed document # 53, Motion of Consolidated Plaintiffs to Deem Interest or to Segregate Settlement Funds for the Purpose of Earning Interest, p. 14, n. 2). In support of its request that the Government be ordered to deposit the settlement proceeds in an interest-bearing account, the Consolidated Plaintiffs alleged that because of the nature of the relationship between qui tam plaintiffs and the Government in qui tam suits, the Government acts as a fiduciary over any settlement proceeds recovered. The settlement proceeds, they argued, can be likened to a trust fund, and by statute, all money held in trust by the Government must be deposited in an interest-bearing account, pursuant to 31 U.S.C. § 1321 and 31 U.S.C. § 9702. In an order dated October 28, 1997,1 denied these motions on the ground that the Government is not a fiduciary of the settlement proceeds (filed document # 80). The Government neither expressly nor impliedly agreed to act as a fiduciary of these funds. Characterizing the settlement funds as a trust fund is inappropriate. I ruled, therefore, that there is no requirement that the Government deposit the proceeds in an interest-bearing account. Relator LaCorte moved to sever his urinalysis claim from the remainder of his claim. This motion was granted, and La-Corte, in turn, filed a motion to retransfer the severed urinalysis claim back to the Eastern District of Louisiana (filed document # 81). Citing the pending appeals of the dismissed claims and the possible effect of the outcome of these appeals on the overall litigation, I denied both LaCorte’s motion for retransfer (filed document # 98) and his motion for reconsideration of my earlier denial (filed document # 111). On December 2, 1997, 1 met with the parties in chambers, and the parties agreed informally to a proposed scheduling order. The parties have complied with this informal agreement. Both the rela-tors and the Government have filed in camera proposed procedural orders, but no formal procedural order was issued. On January 23, 1998, Relator Merena filed a motion for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56(c), requesting that judgment be entered for him in the amount of $10,-385,412, which is 16 percent (the percentage suggested by the Government as being appropriate) of those settlement proceeds that the Government has conceded should be utilized for purposes of determining the qui tam share based on what the Government contended were the six “Merena only” claims. Merena further argued that entry of partial summary judgment would streamline litigation of the remaining issues (filed document # 110). Because of the Government’s alleged concession on this issue, Merena argued that there was no genuine issue as to any material fact, and that he, therefore, was entitled to a partial judgment as a matter of law. The Government opposed this motion on the grounds that Merena had placed at issue whether the Government’s allocation of the settlement proceeds among the various claims was proper. The Government contended that although it recommended the allocation and award of 16 percent of the settlement proceeds as to the so-called non-LABSCAM or six Merena-specific allegations, Merena’s claim for a larger share effectively put the determination of his share at issue. Because of this, the Government argued that there was a genuine dispute as to material facts and therefore the motion for partial summary judgment should be denied. I issued a Memorandum and Order on February 23, 1998 entering judgment in favor of Relator Merena and against the Government in the amount of $9,736,324, which represents the minimum 15 percent of the $64,908,828 the Government allocated to Merena’s six non-LABSCAM claims (filed document # 124) . This judgment was entered without prejudice to the right of any of the Consolidated Plaintiffs, including Merena, to seek and to claim, in this litigation, additional compensation as a qui tam share in the total proceeds of the settlement between the Government and SBCL. 4. Motions for Determination Currently there are four motions outstanding: 1) the Consolidated Plaintiffs’ motion for the determination of relators’ share (filed document # 86); 2) the Government’s motion with respect to the distribution of settlement proceeds (filed document # 105); 3) the Government’s motion to dismiss the Relators’ “automated Chemistry” allegations and to dismiss any of the relators’ claims to any share of the state recoveries (filed document # 101); and 4) a motion by SBCL regarding attorneys, fees (filed document # 117). The Government filed in camera proposed findings of fact and a reply to the Consolidated Plaintiffs’ proposed allocation of the proceeds. The Government also filed a status report regarding discovery (filed document # 118). Both the Government and Rela-tors Merena and Robinson, filed witness lists (filed documents # 115 and # 116). A seven-day evidentiary hearing was held beginning on March 16, 1998, to resolve all of the outstanding motions, including the issue of relators’ share. Both the Government and the Relators have filed post-trial motions to support and supplement arguments made in open court during the seven-day hearing. a. Consolidated Plaintiffs’ Motion to Determine Relators’ Share The Relators contend, as they have throughout the litigation, that they are entitled to an award between 15 and 25 percent of the entire proceeds of the settlement and accrued interest. They contend a percentage in excess of the statutory minimum of 15 percent is justified because of their substantial contributions to the investigation as well as the significant risks they have taken in their efforts to supply information to the Government during its investigation. Based on 15 percent of an allocation of $13,297,829 of the settlement fund to the spear Relators those Relators have agreed to settle then-claims to a qui tam share. The Merena-Robinson Relators do not contest this award and agree that the $13,297,829 allocation should be deducted from the proceeds in determining their qui tam shares. Specifically, the other Consolidated Plaintiffs, Merena and Robinson, are requesting an award of 18 percent of the total recovery, including interest earned on the escrow account, after deducting the Spear Relator allocation. b. Government’s Motion Regarding the Distribution of Settlement Proceeds In the Government’s motion regarding the distribution of settlement proceeds (filed document # 105), the Government argues that the Relators may not presently raise objections to the Government’s allocation of the settlement funds to Rela-tors, specific claims for purposes of determining Relators’ share. The Government takes this position because, it argues, the Relators agreed that the terms of the settlement with SBCL were fair, adequate and reasonable, and they knew exactly the allocations utilized by the Government for purposes of the settlement with SBCL. The Government argues that the Relators effectively waived their right to challenge the Government’s allocation because they did not challenge the fairness of the Settlement Agreement and, therefore, the Government’s allocation of the proceeds between and among the various claims is now binding against the Relators. The Relators, on the other hand, contend that they were never put on notice that by agreeing to the Settlement Agreement, they were also agreeing to the Government’s allocations for purposes of determining the Relators’ qui tam share. Their contention is that they agreed to the overall settlement amount and terms, but that the determination of the Relators, share was an issue totally separate and outside the scope of the Settlement Agreement. They contend that they understood that the determination of Relators’ share was reserved until after the Government settled the qui tam actions with SBCL. The Government’s conduct after the settlement and until just recently supports this understanding, they claim. For example, the Consolidated Plaintiffs cite several instances in which the Government represented to them and to the court that it had not yet determined the allocation of Rela-tors, shares. The Government contends that for purposes of negotiating the settlement with SBCL, the so-called automated chemistry allegations were valued at $234,798,505. After adding interest earned on the escrow account, that sum amounted to $241,283,-471, or approximately 72 percent of the total proceeds including earned interest. (See Government’s Motion to Dismiss the Automated Chemistry Allegations, etc., Exhibit # 2, filed document # 101). In addition, the Government allocated $14,-507,107 with interest included for payment to various states as their “Medicaid share” of the settlement. The Government contends that these two sums, i.e., the $241,-283,471 (automated chemistry) and the $14,507,107 (states Medicaid proceeds) plus the $13,297,829 agreed allocation to the Spear Relators must be deducted from the total proceeds for purposes of determining the Relators’ share. Therefore, based on total proceeds of $333,976,266.40, the Government contends that Relator Merena is entitled to a qui tam share of $10,385,412, which represents 16 percent of the net balance of $64,908,828 allocated by the Government’s calculations to the “Merena non-LABSCAM” allegations. The Government alternatively contends that the Consolidated Plaintiffs, at most, are entitled to no more than 10 percent of the recovery for the Relator’s automated chemistry claims. c. Motion to Dismiss Relators An to the “Automated Chemistry” Claims The Government has moved to dismiss all of the so-called “automated Chemistry” allegations of the Relators, complaints pursuant to Federal Rule of Civil Procedure, 12(b)(1) as to whichever Relator the court deems to have been the “first to file” the automated chemistry allegations settled between the Government and SBCL under 31 U.S.C. § 3730(b)(5). First, the Government seeks to bar Re-lators from any share in the recovery for the automated chemistry claims, pursuant to the jurisdictional bar in 31 U.S.C. § 3730(e)(4), because of allegedly widespread public disclosures of the automated chemistry allegations against SBCL and the Government’s ongoing investigation of SBCL prior to any Relator filing a qui tam action. The Government argues that the Rela-tors’ complaints are jurisdictionally barred as to any “automated chemistry” allegations because the investigation into these claims commenced by the Government pri- or to, and independent of, any contact with the Relators. Specifically, the Government argues that because of the high-profile media coverage of the investigation into the automated chemistry claims prior to the Relators, filing their qui tam actions, the Relators’ claims are jurisdiction-ally barred pursuant to the False Claims Act’s public disclosure bar. 31 U.S.C. § 3730(e)(4)(A). The Government’s argument is that the Government was already aware of SBCL’s illegal conduct and was in the process of investigating this conduct as part of its ongoing LABSCAM Task Force investigation before any of the Rela-tors came forth with any information. Moreover, the Government points out that, prior to the filing of any of these qui tam actions, there were articles in the Neiu York Times and various industry publications, as well as an exposé on a CBS television broadcast of the show 60 Minutes on September 19, 1993, entitled “Blood Money,” concerning the filing of false claims by three medical laboratories including SBCL. Second, the Government seeks to bar Relator Robinson and others because of the first-to-file bar rule in 31 U.S.C. § 3730(b)(5). The Government argues that upon the court’s determination of which Relator was the first to file an automated chemistry claim, the later filing Relators are barred from making any automated Chemistry claims because no person other than the Government may intervene in a qui tam action or “bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). In the alternative, the Government contends that even if the court had jurisdiction over the qui tam plaintiffs’ automated chemistry claims, the Relators would still only be entitled to a relator’s share in the range of zero to ten percent of the recovery allocated to the automated chemistry claims. It is the Government’s contention that no Relator qualifies as an “original source” as to the automated chemistry allegations, but that even if a Relator was an original source, the qui tam share should be limited to a low percentage in the zero to ten percent range category for the amount of the proceeds allocated to the automated chemistry claims. In response to the Government’s motion, the Merena-Robinson Relators contend that 31 U.S.C. § 3730(e)(4) “does not divest the court’s jurisdiction over ‘parties’ ... but instead over the entire action.” (filed document # 113, Reply of Relators to Government’s Motion to Dismiss Automated Chemistry Allegation, p. 16). Therefore, they argue, when the Government intervened in the actions, it “assured the court’s jurisdiction over the Relators’ ‘actions.’ ” (filed document # 113, Reply of Relators to Government’s Motion to Dismiss Automated Chemistry Allegation, p. 16). By intervening, the Relators contend, the Government “establishes subject matter jurisdiction, whether or not, absent intervention, the Court would have had jurisdiction over the Relators.” (filed document # 113, Reply of Relators to' Government’s Motion to Dismiss Automated Chemistry Allegation, p.,14). The Relators contend that they are not jurisdictionally barred by the statute because none of the so-called public disclosures the Government references actually disclose the “allegations or transactions” of SBCL’s fraud schemes as alleged in their respective qui tam actions and their actions were not based upon any public disclosures. The Relators allege that they were the original voluntary sources of the information upon which their respective qui tam actions were based, including the so-called “automated chemistry” allegations. They contend that they had personal, direct and independent knowledge upon which they based all of their allegations. They contend that none of their claims or allegations were based upon or derived from already publicly disclosed information, but were all made upon their individual firsthand personal knowledge. The Relators assert, further, that because there was no public disclosure of their particularized claims or of the allegations or transactions upon which their actions were based including the automated chemistry claims, there is no issue as to whether they were an original source. The Government requests, pursuant to Federal Rule of Civil Procedure 12(b)(6) that the court dismiss the Relators’ claims to a share of the state portion of Medicaid funds recovered by forty-three states from SBCL as a part of the overall settlement. The $14,507,107 that was paid to the states was deducted from the total $325,000,000 plus accrued interest that the Government received. The Government argues that these state funds were not recovered under the federal False Claims Act, 31 U.S.C. §§ 3729-3733, and, therefore, the Relators are not entitled to a share of these state settlement proceeds. The Government claims that the federal statute does not entitle the Relators to any share of the state proceeds. Because these proceeds were paid directly by SBCL to the states and not to the Government, the Government contends it never had or received this money, and it is now the Rela-tors’ burden to deal directly with the states if they believe they are entitled to some portion of the “Medicaid” recoveries paid to the states. It is the Relators’ contention that they are entitled to a percentage share in the total “proceeds of the action or settlement of the claim,” 31 U.S.C. § 3730(d)(1), including that portion “unilaterally diverted to forty-three states.” (filed document # 113, Reply of Relators to Government’s Motion to Dismiss Automated Chemistry Allegation, p. 140). Therefore, Relators contend that the amounts paid to the states should not be deducted from the total fund of money from which their Rela-tors’ share should be calculated. Despite the argument that the Relators should share less than the 15 percent statutory minimum on the “automated chemistry” claims, it appears that the Government concedes that Relator Mere-na is entitled to a qui tam share in the 15 to 25 percent range of all proceeds recovered based on Merena’s “non-automated allegations” or his “new allegations.” The total recovery for these new allegations has been valued by the Government at $64,908,828, including pro-rated earned interest. The Government suggests that an appropriate percentage for these non-automated chemistry claims should be 16 percent. Therefore, the total maximum recovery the Government contends Rela-tors Merena and Robinson are entitled to receive would be $10,385,412.48. The Relators differ with the Government in three major respects. First, they place a higher value on “the extent to which they substantially contributed to the prosecution of the actions.” 31 U.S.C. § 3730(d)(1). They claim that their Rela-tors’ share should be at least IS percent rather than 16 percent as suggested by the Government. Second, they contend that they are entitled to at least 18 percent of the total settlement fund, including the automated chemistry claims and the money paid to the states as part of the Settlement Agreement, less the $13,297,829 allocated for the Spear Relators, regardless of how the funds were allocated by the Government for the purposes of negotiating a settlement with SBCL or distributed among the various federal and state agencies. Third, they contend that they are not, and cannot now, be jurisdictionally barred by the public disclosure bar and that they should not be limited to recovery on only the non-automated chemistry claims. d. Motion of SBCL in regard to Attorney Fees and Costs SBCL has advised that it has agreed to the amount of attorney fees and costs it will pay to Relator Merena, in Civil Action 96-6953. SBCL contends that it should not be required to pay any counsel fees or costs to the Robinson Relators in Civil Action 95-6953 or to the Spear Relators in Civil Action 95-6551, largely because of the “first to file law.” However, all three civil actions, 93-5974, 95-6953 and 95-6551 were settled and dismissed with prejudice by agreement of all parties. The settlement expressly settled all claims asserted in the three qui tam actions and certain other additional claims as set forth in the Settlement Agreement and Release for $325,000,000. There was no allocation of the proceeds between or among the qui tam actions, or among the various claims. There was no motion filed by any party prior to the dismissal of the actions challenging the court’s jurisdiction over any or all of the claims, nor any motion to dismiss any claim or claims. For this reason, it would appear that reasonable attorney fees and reasonable expenses necessarily incurred and costs should be awarded to the qui tam Relator in each of the three actions. B. DISCUSSION 1. Irrelevant Considerations. Before discussing the discrete legal and factual issues, several arguments advanced by one or more of the parties to this litigation may be briefly set aside. Relator Merena, and perhaps other Relators, argue extensively as to the risk and hazard to their respective occupational reputations and future employment prospects, as well as to the disruption of their family life by reason of being “whistle-blowers.” Nothing in the statute remotely suggests that these are appropriate Considerations in determining the amount or proportionate share to be awarded qui tam relators. 31 U.S.C. § 3730(d)(1) sets forth as the only guideline for the 15 to 25 percent range “the extent to which the person substantially contributed to the prosecution of the action or settlement of the claim,” and, as to the “not more than 10 percent” range (if applicable), “the significance of the information and the role of the person bringing the action in advancing the case to litigation.” The two tests, one for the 15 to 25 percent range and the other for the “not more than 10 percent” range appear to be essentially the same; namely, the extent to which the qui tam relator’s information and assistance helped the successful prosecution and, in this case, settlement of the case. Apparently, Congress concluded that the proportionate share of the proceeds established by the statute was an adequate incentive and compensation to a qui tam relator for the economic and personal risks in filing a qui tam action, and that the primary guideline for the percentage to be awarded should be the aid and assistance the information provides toward the ultimate conclusion of the case. The extensive arguments presented by both the Relators and the Government as to the Government’s treatment of qui tam Relators in other actions in which a qui tam percentage share was awarded and/or paid by the Government, whether voluntarily by agreement or after litigation, would appear to have no relevance to the present issues except possibly as some precedence as to what might be an appropriate percentage in this case. The Government, in various of its briefs and filings seems to argue that because of the ongoing LABSCAM investigation, the investigation of SBCL would have ultimately proved just as successful as the investigation of NHL, at least as to the automated chemistry claims, without the aid and assistance of the Relators, and therefore, that the Relators are somehow barred from any recovery as to those claims. I find nothing in the statute that states or suggests that merely because the Government is carrying out an investigation, a qui tam action is barred.' 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. The Government has also made some suggestions that because there was a very large recovery against SB CL, the percentage awarded should be on the lower rather than on the higher end of the appropriate statutory range. There is nothing in the statute to suggest that the amount of the total recovery is, or should be, an appropriate consideration in determining the percentage range or in calculating the total qui tam award. Had Congress intended the amount of the award to be a relevant factor in establishing the percentage of the recovery, it could have simply enumerated this as a relevant factor to be considered, or Congress could have directed a sliding scale of percentages depending on the dollar amount of the recovery. Obviously, Congress had to be well aware that a qui tam Relator could indeed recover a very large sum of money as a qui tam award if the civil recovery that Government obtained from the defendant was also very large. Therefore, I do not consider the amount of the total settlement to be a relevant factor in determining what percentage of the recovery should be paid to a qui tam relator. Finally, both the Government and the Relators argued extensively about matters occurring after the date of the settlement, which for the purpose of deciding the qui tam Relators, share would be, at the latest, the date of the dismissal of the actions on February 24, 1997. The extent, if any, to which the Relators may have assisted or cooperated with the Government in any ongoing or further investigation seems to me to be wholly outside the scope of inquiry in determining the percentage and amount of the award to go to the qui tam Relators for their assistance in bringing about the settlement and the termination of these actions. 2. Justiciability of the percentage range The statute makes no specific reference as to the procedure to be utilized in determining what percentage, within the statutory 15 to 25 percent range, should be awarded a qui tam Relator, nor does the statute expressly provide that the issue of the appropriate percentage is a matter to be decided by the courts in the absence of an agreement between the Government and the Relators. In several sections the statute makes explicit that certain issues are subject to a court hearing, and, therefore by inference, subject to a court decision. As examples of such clearly justiciable issues are: (1) dismissal or settlement of qui tam actions by the Government over the objection by relators (31 U.S.C. § 3730(c)(2)(A) (dismissal) and (B) (settlement); (2) limiting the litigation participation of a qui tam relator when the Government proceeds with the action, 31 U.S.C. § 3730(c)(2)(C) and (D); (3) permitting the Government to intervene at a later date upon a showing of “good cause,” (31 U.S.C. § 3730(c)(3); (4) staying discovery on the application of the Government (31 U.S.C. § 3730(c)(4); (5) an award in the zero to ten percent range — “the Court may award such sum as it considers appropriate” — (31 U.S.C. § 3730(d)(1)). Curiously, the statute says nothing as to whether a court in a judicial proceeding may determine what percentage between the 15 and 25 percent range, where applicable, should be awarded. Having expressly provided for court decision as to some issues, but no mention as to the 15 to 25 percent range, it could be argued that the actual percentage is a matter committed solely to executive (prosecution) branch discretion, reviewable, possibly, only for an abuse of governmental discretion. None of the parties to this litigation have contended that the court may not decide what percentage should be awarded. Case law, without discussing or mentioning the justiciable issue suggests that when the parties cannot agree as to the proper percentage, the matter is appropriate for court judicial decision, to determine “the extent to which the person [qui tam Relator] substantially contributed to the prosecution of the action” (15 to 25 percent range) and “the significance of the information and the role of the person bringing the action in advancing the case to litigation.” 31 U.S.C. § 3730(d)(1). I will proceed to first decide the justicia-ble issues, namely (1) the motion to dismiss the “automated chemistry” claims in Civil Actions 93-5974 and 95-6953; (2) the amount of the proceeds upon which the qui tam percentage award will be based; i.e., whether the state Medicaid recoveries of $14,507,107 should first be deducted from the fund upon which the percentage is calculated; (3) whether the allocations as to separate claims, including the Medicaid, the “automated chemistry” and the other “non-Merena only” claims utilized by the Government in negotiating the settlement with SBCL are binding on the qui tam Relators in determining their qui tam share; (4) whether the 15 to 25 percent range or the zero to ten percent range should be applied to the whole or to separate portions of the claims. Finally, assuming that establishing the actual percentage or percentages are justiciable, the percentage or percentages that should be applied will be decided and judgment will be entered for the amount of the qui tam award. 3. Dismissal of the “Automated Chemistry” Claims The complaints in both Civil Actions 93-5974 and 95-6953 seem clearly to allege all of the so-called “automated chemistry” claims. The Government apparently concedes this and, for that reason, in order to prevent qui tam Relators from sharing any percentage of any recovery attributable properly to those claims, seeks to have those portions of the qui tam complaints dismissed. I find no case that remotely suggests that a district court could now dismiss any of the particular claims made in any of the three qui tam complaints. To begin, all three qui tam complaints were dismissed, with prejudice, including all claims set forth in the complaints, upon the motion of the Government and with the joinder of qui tam Relators and SBCL. I retained jurisdiction over only enforcing the settlement agreement and determining the qui tam shares to be awarded out of the settlement and attorneys fees and Costs and expenses to be assessed against SBCL in favor of the qui tam Relators. Although not directly applicable, the case of Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) makes it apparent, at least to me, that when a ' case is finally dismissed with prejudice, the court loses all jurisdiction except to the extent that jurisdiction is expressly retained in the order of dismissal. The Government seeks to have Relator Merena’s automated chemistry allegations dismissed pursuant to Federal Rule of Civil Procedure 9(b) for failure to plead fraud as to those allegations with sufficient specificity. How or why this should be done at this time, long after the ease was settled and dismissed with prejudice in its entirety is not explained. Even if a timely motion had been made, and granted, undoubtedly the plaintiff would have been afforded an opportunity to re-plead and specify in detail. I consider this argument by the Government to be frivolous. This assertion by the Government is perhaps one of the reasons why the qui tam Relators feel forced to argue that the Government is trying in every conceivable way possible to defeat their respective claims for the qui tam share that they believe they are entitled to receive under the law.' To the extent that the Government is asking this court to dismiss Relator Merena’s automated chemistry Claims for failure to specifically allege fraud, the motion will be denied. The Government’s primary contention as to both Merena and Robinson’s automated chemistry Claims .is that these claims should be dismissed from both of the qui tam Complaints because of lack of subject matter jurisdiction, pursuant to the bar of 31 U.S.C. § 3730(e)(4)(A). The qui tam actions, including all claims asserted therein have already been dismissed with prejudice. They do not have to be re-dismissed. Perhaps of even more importance, the Government does not contend that the court lacked jurisdiction over the actions, but merely certain of the claims alleged in each of the actions. The qui tam Relators contend that their automated chemistry claims were not “based upon” any public disclosures or obtained or copied from news reports or media, but were based upon their personal knowledge and information and that they were, in any event, “original sources” within the meaning of the statute 31 U.S.C. § 3730(e)(4)(B). They also contend that irrespective of whether their respective actions, as to some of the claims might have been subject to dismissal under 31 U.S.C. .§ 3730(e)(4)(A) and (B), no motion to do so was ever made, and upon the Government formally intervening in the action, the question of the court having subject matter jurisdiction was mooted. I agree. On the motion to dismiss the automated chemistry claims, I conclude that the motion will be denied. In doing this, I do not decide whether those claims could have been barred because of preexisting public disclosures and whether either of the Rela-tors were “original sources” if the motions had been made before the dismissals. Even if the “automated chemistry” claims could have been, or may even now be subject to dismissal, this would not necessarily preclude the qui tam Relators from sharing within the 15 to 25,percent range on the “proceeds of the' action or settlement of the claim.” Where 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 15 percent of the entire settlement, as well "as "a percentage above the 15 percent minimum up to the maximum of 25 percent “depending upon the extent to which the person [qui tam Relator] substantially contributed to the prosecution of the action.” 4. Allocation of Values to Specific Claims The denial of the Government’s motion to dismiss all of the automated chemistry claims contained in the qui tam Relators’ complaints does not necessarily mean that the Relators are entitled to a share in the 15 to 25 percent range, or indeed even in the “not more than 10 percent” range. The Government contends that the court must consider the actions of the Relators on a claim by claim basis irrespective of whether the automated chemistry allegations are dismissed. As to those claims in which there was prior public disclosure and the Relators were not “original sources”, the Government argues that the Relators are entitled to no qui tam share of the proceeds. The qui tam statute involved makes no mention of treating a qui tam complaint as having distinct and divisible claims for the purpose of determining the qui tam Relator’s share of the proceeds. The statute provides that where the Government intervenes and proceeds with the action, as it did in these cases, the qui tam Relator shall “receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim.” (Underlining added). The statute speaks of the action and claim as a single unit or whole entity. It would seem almost inevitable to me that at least in most qui tam actions there would be allegations of multiple false claims alleged in a complaint. The qui tam actions involved here were settled as to all claims, whether or not validly pled or substantively valid, for a single overall sum of money. In determining the portion to be paid to qui tam Relators, I do not think the statute ever contemplated that a court should, after the fact of settlement, consider each separate claim to determine whether the claim was subject to dismissal because of pre-filing public disclosures and/or whether the Relators were an “original source.” The Government never sought to have any of the Relators’ qui tam allegations dismissed prior to entry of the order settling and dismissing each of the actions with prejudice. Neither did it ever seek leave to file an amended complaint, as it undoubtedly had the right to do. Far more important, at least to me, is that in all three of the qui tam actions, the Government intervened, and settled with SBCL (with the consent of the Relators) for an overall settlement sum of $325,000,-000. The signed Settlement Agreement and the executed Releases designated no monetary allocation or division among various claims, other than mention that the settlement included all enumerated claims by various Governmental agencies, and by the separate state claims for their respective Medicaid losses. Neither did the Settlement Agreement, the Releases or anything else filed of record seek to allocate or quantify a dollar amount between or among the three qui tam actions or the separate claims of each action. The evidence is specific and clear that although the Government, in determining the reasonableness and adequacy of the overall settlement, evaluated the monetary value of certain distinct claims, the settlement between the Government and SBCL was an arbitrary “bottom line” figure of $325,000,000 for all of the claims that were set forth in the Settlement Agreement through the date of September 16, 1996. The settlement expressly included all of the claims set forth in the three qui tam actions and all claims for the states’ Medicaid losses. SBCL certainly did not settle the qui tam actions or any specific claim or claims asserted therein for any specific sum other than the overall figure of $325,-000,000. Even if the court should consider the qui tam shares on a claim by claim basis, because the only quantified amount is the overall settlement of $325,000,000, it seems to me that, at the least, the Government would have the burden of proof to establish such allocation of the settlement proceeds it seeks to have the court make. The Government apparently contends that it has fully established this and met any burden of proof that it may have, because prior to the settlement being approved, the Government submitted to the Relators its proposed allocations that it would present to SBCL for the purpose of concluding settlement negotiations. The evidence is clear however, that no representative of the Government ever informed any of the Relators that the Government would contend that these calculations would be binding on Relators in determining their respective qui tam shares. Neither did the Government ever inform any of the Rela-tors that if the matter of the qui tam shares would ever be litigated, the Government would contend that the Relators had waived any right to contest such allocations because they had agreed to the overall settlement with SB CL with knowledge of the allocations assigned by the Government for purposes of negotiating the settlement. To the extent that a finding on waiver is necessary or appropriate, I find as a fact that the Government’s position that the Relators must accept and are bound by the Government’s allocation was never expressed to the Relators prior to their agreeing to the settlement. Even in Court filings and representations to the court, long after the settlement was approved, and while the issues of the Additional Plaintiffs’ right to share in the proceeds as qui tam relators was being litigated, the Government repeatedly stated that it had not yet calculated or determined what amount it would offer to the qui tam Relators, either individually or in total. I find the Government’s position that the Relators, by not objecting to the overall settlement somehow waived their right to challenge the Government’s assigned allocations of proceeds to particular claims to be unacceptable. So far as the evidence discloses the allocations were unilaterally set by the Government. They were never expressly agreed to by any party, including SBCL. The Government now contends that not only the Relators, but also the court, must accept at face value those allocations. The Government used the allocations of proceeds among claims solely for purposes of negotiating a settlement and to calculate distribution of the proceeds among the various affected governmental agencies. 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 the 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 requested. This I cannot accept. I conclude on this issue, that the Rela-tors are not bound by the allocations assigned by the Government as to the automated chemistry, the “new Merena-only” and the Spear 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. Even if dividing the proceeds among separate claims would be appropriate, there is no evidence upon which a fact-finder could rationally make such a determination on the record before me. All parties were provided with a full opportunity to develop the record on all issues. In determining the qui tam share or shares to be paid to the Relators, the claims may not be allocated for dollar amounts between or among the automated chemistry, the “new Merena only” and other claims. First, neither the Settlement Agreement, the Release nor any statement or document on record at the time of the approval of the settlement ever mentioned any separate sum of money other than the $325,000,000. Second, the statute makes no suggestion that a qui tam award should be based on a claim by claim basis to determine which claims are valid or what the individual monetary worth of separate claims were to the overall settlement. The percentage of the award above the minimum is to be based upon the extent to which the qui tarn Relator substantially contributed to the prosecution of the action. Third, Relators did not waive then-right to contest any governmental allocations of proceeds to particular claims. Finally, there is no basis in the evidence upon which a monetary allocation among claims could rationally be made. 5. Medicaid Fraud Payments Made to 42 States and the District of Columbia The February 24,1997 order of distribution from the escrow account directed that “$14,460,124.01 be distributed into the National Association of Medicaid Fraud Control Units, for further distribution to the states with which SBCL had settled.” The total amount of net proceeds recovered by the Government was $319,469,159 ($333,-976,266 less $14,507,107). The evidence discloses that 42 states and the District of Columbia, who had made Medicaid payments under then-respective state programs to SBCL, negotiated separate settlements with SBCL. Because SBCL sought a “global settlement” for the alleged billing fraud claims, the amount to be paid to the states