(1) Responsibility of
attorney general. The attorney general shall diligently investigate a violation under
section 25.5-4-305. If the attorney general finds that a person has violated or is
violating section 25.5-4-305, the attorney general may bring a civil action under
this section against the person.
(2) Actions by private persons. (a) A relator may bring a civil action for a
violation of section 25.5-4-305 on behalf of the relator and the state. The action
shall be brought in the name of the state. The action may be dismissed only if the
court and the attorney general give written consent to the dismissal and their
reasons for consenting.
(b) A copy of the complaint and written disclosure of substantially all
material evidence and information the relator possesses shall be served on the
state pursuant to rule 4 of the Colorado rules of civil procedure. The complaint shall
be filed in camera, shall remain under seal for at least sixty days, and shall not be
served on the defendant until the court so orders. The state may elect to intervene
and proceed with the action within sixty days after it receives both the complaint
and the material evidence and information.
(c) The state may, for good cause shown, move the court for extensions of
the time during which the complaint remains under seal under paragraph (b) of this
subsection (2). Any such motion may be supported by affidavits or other
submissions in camera. The defendant shall not be required to respond to a
complaint filed under this section until twenty days after the complaint is unsealed
and served upon the defendant pursuant to rule 4 of the Colorado rules of civil
procedure.
(d) Before the expiration of the sixty-day period pursuant to paragraph (b) of
this subsection (2) or any extensions obtained under paragraph (c) of this
subsection (2), the state shall:
(I) Proceed with the action, in which case the state shall conduct the action;
or
(II) Notify the court that it declines to take over the action, in which case the
relator shall have the right to conduct the action.
(e) When a relator brings an action under this subsection (2), no person other
than the state may intervene or bring a related action based on the facts underlying
the pending action.
(3) Rights of parties to private actions. (a) If the state proceeds with an
action brought under subsection (2) of this section, it shall have the primary
responsibility for prosecuting the action and shall not be bound by an act of the
relator. The relator shall have the right to continue as a party to the action, subject
to the limitations set forth in paragraph (b) of this subsection (3).
(b) (I) The state may dismiss the action notwithstanding the objections of the
relator if the relator has been notified by the state of the filing of the motion and
the court has provided the relator with an opportunity for a hearing on the motion.
(II) The state may settle the action with the defendant notwithstanding the
objections of the relator 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, the hearing may be held in camera.
(III) Upon a showing by the state that unrestricted participation during the
course of the litigation by the relator would interfere with or unduly delay the
state'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 relator's
participation, including but not limited to:
(A) Limiting the number of witnesses the relator may call;
(B) Limiting the length of the testimony of the witnesses;
(C) Limiting the relator's cross-examination of witnesses; or
(D) Otherwise limiting the participation by the relator in the litigation.
(IV) Upon a showing by the defendant that unrestricted participation during
the course of the litigation by the relator would be for purposes of harassment or
would cause the defendant undue burden or unnecessary expense, the court may
limit the participation by the relator in the litigation.
(c) If the state elects not to proceed with the action, the relator who initiated
the action shall have the right to conduct the action. If the state so requests, it shall
be served with copies of all pleadings filed in the action and, at the state's expense,
shall be supplied with copies of all deposition transcripts. When a relator proceeds
with the action, the court, without limiting the status and rights of the relator, may
nevertheless permit the state to intervene at a later date upon a showing of good
cause.
(d) Regardless of whether the state proceeds with the action, upon a
showing by the state that certain actions of discovery by the relator would interfere
with the state's investigation or prosecution of a criminal or civil matter arising out
of the same facts, the court may stay the discovery for a period of not more than
sixty days. The showing shall be conducted in camera. The court may extend the
sixty-day period upon a further showing in camera that the state has pursued the
criminal or civil investigation or proceedings with reasonable diligence and that any
proposed discovery in the civil action will interfere with the ongoing criminal or civil
investigation or proceedings.
(e) Notwithstanding the provisions of subsection (2) of this section, the state
may elect to pursue its claim through any alternate remedy available to the state,
including any administrative proceeding to determine a civil money penalty. If an
alternate remedy is pursued in another proceeding, the relator shall have the same
rights in the proceeding as the relator would have had if the action had continued
under this section. Any finding of fact or conclusion of law made in another
proceeding that has become final shall be conclusive on all parties to an action
under this section. For purposes of this paragraph (e), a finding or conclusion is final
if it has been finally determined on appeal to the appropriate court of the state, if
all time for filing such an appeal with respect to the finding or conclusion has
expired, or if the finding or conclusion is not subject to judicial review.
(4) Award to private persons. (a) (I) If the state proceeds with an action
brought by a relator under subsection (2) of this section, the relator shall, subject to
subparagraph (II) of this paragraph (a), receive at least fifteen percent but not more
than twenty-five percent of the proceeds of the action or settlement of the claim,
depending upon the extent to which the relator substantially contributed to the
prosecution of the action.
(II) If the court finds the action to be based primarily on disclosures of
specific information, other than information provided by the relator, relating to
allegations or transactions in a criminal, civil, or administrative hearing, in a
legislative, administrative, or state auditor's report, hearing, audit, or investigation,
or from the news media, the court may award to the relator such sums as it
considers appropriate, but in no case more than ten percent of the proceeds, taking
into account the significance of the information and the role of the relator in
advancing the case to litigation.
(III) Any payment to a relator under subparagraph (I) or (II) of this paragraph
(a) shall be made from the proceeds. The relator shall also receive an amount for
reasonable expenses that the court finds to have been necessarily incurred plus
reasonable attorney fees and costs. All such expenses, fees, and costs shall be
awarded against the defendant.
(b) If the state does not proceed with an action brought under subsection (2)
of this section, the relator bringing the action or settling the claim shall receive an
amount that the court decides is reasonable for collecting the civil penalty and
damages. The amount shall be not less than twenty-five percent and not more than
thirty percent of the proceeds of the action or settlement and shall be paid out of
the proceeds. The relator shall also receive an amount for reasonable expenses
that the court finds to have been necessarily incurred, plus reasonable attorney
fees and costs. All such expenses, fees, and costs shall be awarded against the
defendant.
(c) Regardless of whether the state proceeds with an action brought under
subsection (2) of this section, if the court finds that the action was brought by a
relator who planned and initiated the violation of section 25.5-4-305 upon which
the action was brought, then the court may, to the extent the court considers
appropriate, reduce the share of the proceeds of the action that the relator would
otherwise receive under paragraph (a) or (b) of this subsection (4), taking into
account the role of the relator in advancing the case to litigation and any relevant
circumstances pertaining to the violation. If the relator is convicted of criminal
conduct arising from his or her role in the violation of section 25.5-4-305, the
relator shall be dismissed from the civil action and shall not receive any share of the
proceeds of the action. Such dismissal shall not prejudice the right of the state to
continue the action.
(d) If the state does not proceed with an action brought under subsection (2)
of this section and the relator bringing the action conducts the action, the court
may award to the defendant its reasonable attorney fees and expenses if the
defendant prevails in the action and the court finds that the claim of the relator was
clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.
(5) Certain actions barred. (a) A court shall not have jurisdiction over an
action brought under this section against a member of the general assembly, a
member of the state judiciary, or an elected official in the executive branch of the
state of Colorado if the action is based on evidence or information known to the
state when the action was brought.
(b) A relator shall not bring an action under subsection (2) of this section that
is based upon allegations or transactions that are the subject of a civil suit or an
administrative civil money penalty proceeding in which the state is already a party.
(c) (I) A court shall dismiss an action or claim brought under subsection (2) of
this section unless opposed by the state, if substantially the same allegations or
transactions as alleged in the action or claim were publicly disclosed in a state
criminal, civil, or administrative hearing in which the state or its agent is a party, in a
legislative, administrative, or state auditor's report, hearing, audit, or investigation,
or by the news media, unless the action is brought by the state or the relator is an
original source of the information.
(II) For purposes of this paragraph (c), original source means an individual
who, prior to a public disclosure under subparagraph (I) of this paragraph (c), has
voluntarily disclosed to the state the information on which the allegations or
transactions in a claim are based, or who has knowledge that is independent of and
materially adds to the publicly disclosed allegations or transactions, and has
voluntarily provided the information to the state before filing an action under
subsection (2) of this section.
(6) State not liable for certain expenses. The state is not liable for expenses
that a relator incurs in bringing an action under this section.
(7) Private action for retaliation. (a) An employee, contractor, or agent shall
be entitled to all relief necessary to make the employee, contractor, or agent whole,
if the employee, contractor, or agent is discharged, demoted, suspended,
threatened, harassed, or in any other manner discriminated against in the terms and
conditions of employment by the defendant or by any other person because of
lawful acts done by the employee, contractor, or agent, or associated others in
furtherance of an action under this section or in furtherance of an effort to stop any
violations of section 25.5-4-305.
(b) (I) An employee, contractor, or agent who seeks relief pursuant to this
subsection (7) shall be entitled to all relief necessary to make the employee,
contractor, or agent whole. Such relief shall include:
(A) Reinstatement with the same seniority status the employee, contractor,
or agent would have had but for the discrimination, twice the amount of back pay,
and interest on the back pay; and
(B) Compensation for any special damages sustained as a result of the
discrimination or retaliation, including litigation costs and reasonable attorney fees.
(II) An employee, contractor, or agent may bring an action in the appropriate
court of the state for the relief provided in this subsection (7).