1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

In the Matter of the Enforcement of New Jersey False Claims Act Subpoenas (A-5-16) (077506)

Argued March 13, 2017 -- Decided June 7, 2017

(NOTE: The Court did not write a plenary opinion in this case. Instead, the Court affirms the judgment of 

the Appellate Division substantially for the reasons expressed in Judge Fisher’s written opinion, which is 

published as In re Enforcement of N.J. False Claims Act Subpoenas, 444 N.J. Super. 566 (App. Div. 2016).)

Patterson, J. writing for the Court.

The purely legal question posed in this appeal concerns the extent to which the New Jersey False Claims 

Act (NJFCA), N.J.S.A. 2A:32C-1 to -15, -17 to -18, permits the Attorney General to continue to utilize the NJFCA’s 

administrative subpoena power once his right to intervene in a qui tam action has expired. Specifically, the Court 

considers the propriety of an order that directed appellants John Henderson and Arthur Nardin and intervenors 

Medco Health Solutions, Inc., and Express Scripts Holding Co. to comply with administrative subpoenas issued by 

the Acting Attorney General (the Attorney General) pursuant to the NJFCA.

In August 2011, Paul Denis, a former Medco employee (hereafter “the relator”), commenced a qui tam 

action—under seal—in the United States District Court for the District of Delaware. Two years later, the relator 

amended his complaint to assert claims on behalf of the State of New Jersey; he alleged that Medco, the pharmacy 

benefits manager for the State’s employee health benefits programs, perpetrated a massive fraud on the State and 

other governmental entities by retaining rebates it was required to pass through to its clients, in violation of the 

federal False Claims Act, 31 U.S.C.A. §§ 3729 to 3733, and the NJFCA.

Pursuant to N.J.S.A. 2A:32C-5(d), the Attorney General was required to determine, within sixty days of 

service of the amended complaint, whether to intervene and take control of the State’s claims. This sixty-day period 

may be extended by motion, N.J.S.A. 2A:32C-5(f), and the record reveals the Attorney General’s office repeatedly 

took advantage of this opportunity; extensions granted by the district judge in the qui tam action totaled 

approximately 600 days. When yet another extension was sought on March 6, 2015, the district judge granted it but 

also declared that the “final intervention deadline” would be June 2, 2015.

Medco was timely served with a subpoena and, to the extent it could be argued it did not comply—a matter 

in dispute—the Attorney General did not seek enforcement within the extended time period permitted by the district 

judge. Moreover, there is no dispute Henderson and Nardin were not served with subpoenas until July 22, 2015—

seven weeks after the deadline’s expiration and the unsealing of the qui tam complaint.

When the district judge’s extended deadline expired, appellants refused to comply with the Attorney 

General’s tardy subpoenas. In September 2015, Medco filed—and Henderson and Nardin joined in—a motion in 

federal court for a protective order. While opposing Medco’s motion, the Attorney General sought—by way of the 

civil action at hand—enforcement of his subpoenas. The chancery judge entered an enforcement order.

The Appellate Division reversed the trial court’s judgment in a published decision. 444 N.J. Super. 566 

(App. Div. 2016). The panel concluded that with the passing of the intervention deadline and the unsealing of the 

qui tam complaint, the NJFCA precluded the issuance and enforcement of subpoenas for the purpose of 

investigating the false claim or claims alleged in the qui tam action.

The panel cited N.J.S.A. 2A:32C-5(g)’s requirement that, “before the expiration” of that 60-day period or 

any permitted extension, the Attorney General “shall” either proceed with the action or decline to proceed with the 

action. The NJFCA provides the Attorney General with no further options, the panel stated. The panel reasoned 

that N.J.S.A. 2A:32C-14(a) sets forth the administrative investigatory powers granted the Attorney General but does 
2

not provide an additional or separate font of power once the Attorney General declines the right to intervene in a qui 

tam action within the prescribed timeframe. The panel further noted that N.J.S.A. 2A:32C-6(f) limits the Attorney 

General’s rights once he has decided “not to proceed” with the qui tam action and found that, once the relator is 

placed in control of the litigation, the NJFCA clearly presupposes that the Attorney General must stand down.

Mindful that the control of qui tam discovery proceedings rests with the federal court, the panel also 

determined that matters of comity counsel against authorizing a separate collateral investigation by the Attorney 

General. The panel recognized that the Attorney General retains the opportunity to seek intervention upon good 

cause shown in the qui tam action but found that the NJFCA does not give the Attorney General the right to 

investigate the allegations of the qui tam action by way of administrative subpoena or through the conducting of ex 

parte interviews of witnesses as otherwise would have been permitted before he declined to intervene as of right.

The Court granted leave to appeal. 227 N.J. 375 (2016).

HELD: The Court concurs with the Appellate Division panel’s conclusion that the language of the NJFCA does not 

authorize the Attorney General to invoke his or her administrative subpoena power in a given matter after the right to 

intervene in the qui tam action has expired. After the Attorney General declines to intervene in a qui tam action 

pursuant to N.J.S.A. 2A:32C-5(g) and leaves that action in the relator’s control, the Attorney General loses the authority 

conferred by N.J.S.A. 2A:32C-14(a) to issue administrative subpoenas.

1. The Court comments on the State’s contention that a comparison of the NJFCA and its federal counterpart, the 

False Claims Act (FCA), 31 U.S.C.A. §§ 3729 to 3733, demonstrates the Legislature’s intent to authorize the 

Attorney General to issue administrative subpoenas, whether or not the Attorney General intervenes in the action. 

The FCA expressly bars the United States Attorney General from issuing investigative demands following an 

election not to intervene in a particular action. 31 U.S.C.A. §§ 3730(b)(4), 3733(a)(1). The Court disagrees with the 

Attorney General’s argument that, because the NJFCA does not include the federal law’s specific language 

imposing that time limitation, the New Jersey Legislature must have intended to confer on the Attorney General the 

power to issue administrative subpoenas even after he or she elects not to intervene. (pp. 2-3)

2. The NJFCA’s provision authorizing administrative subpoenas, N.J.S.A. 2A:32C-14(a), tracks neither the 

structure nor the text of the FCA discovery provision, 31 U.S.C.A. § 3733(a)(1). The fact that N.J.S.A. 2A:32C14(a) does not mirror the precise wording of the FCA’s temporal limitation on the United States Attorney General’s 

authority to issue subpoenas is therefore not evidence of the Legislature’s intent to grant the New Jersey Attorney 

General such authority in perpetuity. (pp. 3-4)

3. There is compelling evidence of legislative intent in the structure and language of the NJFCA itself. The 

Attorney General’s decision not to intervene in a qui tam case is final, and the relator is afforded the right to conduct 

the action. N.J.S.A. 2A:32C-6(f). The NJFCA thus envisions a limited time period during which the Attorney 

General may investigate an alleged violation of the statute; the administrative subpoena is at his or her disposal at 

this pivotal stage. N.J.S.A. 2A:32C-5, -14(a). When that time period expires without intervention, the Attorney 

General’s authority to serve administrative subpoenas pursuant to N.J.S.A. 2A:32C-14(a) expires with it. (pp. 4-6)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE FERNANDEZ-VINA, DISSENTING, expresses the view that the plain language of N.J.S.A.

2A:32C-14 does not limit the Attorney General’s power to issue subpoenas following the unsealing of a qui tam 

complaint or an intervention decision. The temporal limitations in the FCA do not appear in the NJFCA, and, in 

Justice-Fernandez-Vina’s view, the Legislature’s election to depart from the federal False Claims Act in this respect 

evidences legislative intent not to impose a requirement that the Attorney General issue subpoenas before the 

unsealing of a qui tam complaint or an intervention decision. Further, there is no conflict between N.J.S.A. 2A:32C5(g) and N.J.S.A. 2A:32C-6(f), and N.J.S.A. 2A:32C-14, according to Justice Fernandez-Vina.

CHIEF JUSTICE RABNER and JUSTICE SOLOMON join in JUSTICE PATTERSON’s opinion. 

JUSTICE FERNANDEZ-VINA filed a separate, dissenting opinion, in which JUSTICE LaVECCHIA joins. 

JUSTICES ALBIN and TIMPONE did not participate.
1

SUPREME COURT OF NEW JERSEY

A-5 September Term 2016

077506

IN THE MATTER OF THE 

ENFORCEMENT OF NEW JERSEY

FALSE CLAIMS ACT SUBPOENAS

Argued March 13, 2017 – Decided June 7, 2017

On appeal from the Superior Court, 

Appellate Division, whose opinion is 

reported at 444 N.J. Super. 566 (App. Div.

2016).

John M. Falzone, Assistant Attorney General, 

argued the cause for appellant (Christopher 

S. Porrino, Attorney General of New Jersey, 

attorney; Andrea M. Silkowitz, Melissa H. 

Raksa and Brian F. McDonough, Assistant 

Attorneys General, of counsel; John M. 

Falzone, Joan E. Karn, Janine Matton and 

Kent D. Anderson, Deputy Attorneys General, 

on the briefs).

Kevin H. Marino argued the cause for 

respondent Arthur Nardin (Marino, Tortorella 

& Boyle, attorneys; Kevin H. Marino and John 

A. Boyle on the brief).

Elizabeth J. Hampton argued the cause for 

respondent John Henderson (Fox Rothschild, 

attorneys; Elizabeth J. Hampton and Alain 

Leibman of counsel and on the brief).

Lawrence S. Lustberg argued the cause for 

intervenors Medco Health Solutions, Inc. and 

Express Scripts Holding Co. (Gibbons, 

attorneys; Lawrence S. Lustberg, Amanda B. 

Protess, Jennifer G. Wicht and Holly M. 

Conley, on the brief). 

JUSTICE PATTERSON delivered the opinion of the Court.
2

We affirm the decision of the Appellate Division panel, 

substantially for the reasons stated in Judge Fisher’s

comprehensive opinion, reported at 444 N.J. Super. 566, 572-75 

(App. Div. 2016). We concur with the panel’s conclusion that

the language of the New Jersey False Claims Act (NJFCA), 

N.J.S.A. 2A:32C-1 to -15, -17 to -18, does not authorize the 

Attorney General to invoke his or her administrative subpoena 

power in a given matter after the right to intervene in the qui 

tam action has expired. Id. at 572-73 (citing N.J.S.A. 2A:32C5(g), -6(f), -14(a)). We share the panel’s view that after the 

Attorney General declines to intervene in a qui tam action 

pursuant to N.J.S.A. 2A:32C-5(g) and leaves that action in the 

relator’s control, the Attorney General loses the authority

conferred by N.J.S.A. 2A:32C-14(a) to issue administrative 

subpoenas. Id. at 572-74. 

We briefly comment on the State’s contention that a 

comparison of the NJFCA and its federal counterpart, the False 

Claims Act (FCA), 31 U.S.C.A. §§ 3729 to 3733, demonstrates the 

Legislature’s intent to authorize the Attorney General to issue 

administrative subpoenas, whether or not the Attorney General 

intervenes in the action. That argument is premised on the 

FCA’s provision authorizing the United States Attorney General 

to issue investigative demands for documentary evidence, 

responses to interrogatories, oral testimony, or “any 
3

combination of such material, answers, or testimony.” 31 

U.S.C.A. § 3733(a)(1). The FCA provides that any such demands 

must be served before the Attorney General “commenc[es] a civil 

proceeding under section 3730(a) or other false claims law, or 

mak[es] an election under section 3730(b)” of the federal 

statute. Ibid. The “election” to which the FCA refers is the 

Attorney General’s decision whether or not to intervene in a qui 

tam action. 31 U.S.C.A. § 3730(b)(4). Thus, the FCA expressly 

bars the United States Attorney General from issuing 

investigative demands following an election not to intervene in 

a particular action.

Here, the Attorney General argues that, because the NJFCA 

does not include the federal law’s specific language imposing 

that time limitation, our Legislature must have intended to 

confer on the Attorney General the power to issue administrative 

subpoenas even after he or she elects not to intervene. We 

disagree. 

This is not a setting in which our Legislature has used a 

federal statute as a model for a counterpart provision and 

replicated its language but deleted a portion of the text, which 

would evince legislative intent to diverge from the federal 

approach in that specific respect. See Airwork Serv. Div. v. 

Dir., Div. of Taxation, 97 N.J. 290, 294 (1984), cert. denied

471 U.S. 1127, 105 S. Ct. 2662, 86 L. Ed. 2d 278 (1985) (“Where 
4

the Legislature adopts a new law, using as a source a statute 

theretofore enacted in another jurisdiction, but omits a 

provision of the source statute, the omission is construed as 

being deliberate.” (quotation omitted)). To the contrary, the 

NJFCA’s provision authorizing administrative subpoenas, N.J.S.A.

2A:32C-14(a), tracks neither the structure nor the text of the 

FCA discovery provision, 31 U.S.C.A. § 3733(a)(1).1 The fact 

that N.J.S.A. 2A:32C-14(a) does not mirror the precise wording

of the FCA’s temporal limitation on the United States Attorney 

General’s authority to issue subpoenas is therefore not evidence 

of the Legislature’s intent to grant the New Jersey Attorney 

General such authority in perpetuity. In short, the federal 

statute offers little guidance on the specific issue raised in 

this case.

We find, however, compelling evidence of legislative intent 

in the structure and language of the NJFCA itself. The NJFCA

addresses administrative subpoenas in N.J.S.A. 2A:32C-14(a), 

 

1 The two statutes, for example, use different terminology to 

describe the discovery demands that the Attorney General may 

serve: the FCA uses the term “civil investigative demand,” 31

U.S.C.A. § 3733(a)(1), and the NJFCA refers to the demands as 

“subpoenas,” N.J.S.A. 2A:32C-14(a). The federal and state 

statutes, further, do not confer identical authority to demand 

discovery: although both the FCA and NJFCA authorize demands 

for oral testimony and documents, the FCA additionally 

authorizes the United States Attorney General to demand written 

answers to interrogatories. Compare N.J.S.A. 2A:32C-14(a), with

31 U.S.C.A. § 3733(a)(1)(A) to (C). 
5

which is invoked when “the Attorney General has reason to 

believe that a person has engaged in, or is engaging in, an act 

or practice which violates this act, or any other relevant 

statute or regulation.” N.J.S.A. 2A:32C-14(a). The Legislature 

unambiguously provided a sixty-day time period for the Attorney 

General to conduct its review and elect to intervene, or not to 

intervene, in the action. N.J.S.A. 2A:32C-5(d), (g). During 

that period, the Attorney General clearly has the authority to 

issue subpoenas in accordance with N.J.S.A. 2A:32C-14(a).

The Attorney General’s decision not to intervene in a qui 

tam case starkly alters the landscape. That decision is final,

and the relator is afforded the right to conduct the action. 

N.J.S.A. 2A:32C-6(f). The NJFCA provision addressing 

proceedings after the Attorney General decides not to intervene 

permits the Attorney General access to pleadings, motions, and 

deposition transcripts to monitor the progress of the case, but 

grants the Attorney General no power to subpoena witnesses or 

documents after he or she declines to intervene. N.J.S.A.

2A:32C-6. If, as a result of monitoring a qui tam action 

conducted by the relator, the Attorney General learns of 

information that warrants his or her involvement, he or she can 

seek leave to intervene; the NJFCA authorizes the court, on a 

showing of good cause, to “permit the Attorney General to 
6

intervene and take over the action on behalf of the State at a 

later date.” N.J.S.A. 2A:32C-6(f).2 

The NJFCA thus envisions a limited time period during which 

the Attorney General may investigate an alleged violation of the 

statute; the administrative subpoena is at his or her disposal 

at this pivotal stage. N.J.S.A. 2A:32C-5, -14(a). When that 

time period expires without intervention, the Attorney General’s 

authority to serve administrative subpoenas pursuant to N.J.S.A.

2A:32C-14(a) expires with it.3

We therefore concur with the Appellate Division panel’s

determination that the trial court erred when it enforced the 

 

2 After the unsealing of the complaint in this case, the 

Attorney General did not seek leave to intervene on a showing of 

good cause, pursuant to N.J.S.A. 2A:32C-6(f). Accordingly, we 

do not consider the scope of the Attorney General’s 

investigative authority in the event that he or she is permitted 

to intervene in accordance with that provision.

3 Our dissenting colleague characterizes our interpretation of 

N.J.S.A. 2A:32C-5(d), N.J.S.A. 2A:32C-5(g), N.J.S.A. 2A:32C6(f), and N.J.S.A. 2A:32C-14(a) as an application of the canon 

of statutory construction by which a specific provision in a 

statute predominates over a general provision in the event that 

the two conflict. Post at ___ (slip op. at 10). That principle 

is not the basis for our construction of the NJFCA, or the 

Appellate Division’s holding. See In re Enforcement of N.J. 

False Claims Act Subpoenas, 444 N.J. Super. 566, 572-74 (App. 

Div. 2016). Instead, we view the relevant provisions of the 

NJFCA to jointly express the Legislature’s intent to afford to 

the Attorney General an opportunity to investigate a qui tam 

action using administrative subpoenas, and to limit that 

opportunity to the sixty-day period prior to the unsealing of 

the complaint. See N.J.S.A. 2A:32C-5(d), N.J.S.A. 2A:32C-5(g), 

N.J.S.A. 2A:32C-6(f), N.J.S.A. 2A:32C-14(a).
7

Attorney General’s administrative subpoenas and ordered

compliance with those subpoenas. The judgment of the Appellate 

Division is affirmed. 

CHIEF JUSTICE RABNER and JUSTICE SOLOMON join in JUSTICE 

PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA filed a separate, 

dissenting opinion, in which JUSTICE LaVECCHIA joins. JUSTICES 

ALBIN and TIMPONE did not participate.
1

SUPREME COURT OF NEW JERSEY

A-5 September Term 2016

077506

IN THE MATTER OF THE 

ENFORCEMENT OF NEW JERSEY

FALSE CLAIMS ACT SUBPOENAS

JUSTICE FERNANDEZ-VINA dissenting.

As the majority correctly recognizes, whether the New 

Jersey False Claims Act (NJFCA), N.J.S.A. 2A:32C-1 to -18, 

places certain temporal limits on the Attorney General’s 

subpoena power is a matter of statutory interpretation. I 

dissent because the majority fails to properly credit the plain 

language of N.J.S.A. 2A:32C-14, which does not limit the 

Attorney General’s power to issue subpoenas following the 

unsealing of a qui tam complaint or an intervention decision. 

Even if we were to venture beyond the plain language of N.J.S.A.

2A:32C-14, there still would be no basis to conclude that the 

Attorney General’s subpoena power is constrained in this manner.

I.

When interpreting a statute, a court’s “overriding goal” is 

to discern legislative intent. Johnson v. Roselle EZ Quick LLC, 

226 N.J. 370, 386 (2016) (quoting Jersey Cent. Power & Light Co. 

v. Melcar Util. Co., 212 N.J. 576, 586 (2013)). It is a wellestablished canon of statutory construction that the starting 

point for determining the Legislature’s intent is the language 
2

of the statute itself. Ibid. If the language is clear and 

unambiguous on its face, that is the end of the interpretive 

inquiry. See ibid. (“‘If the plain language leads to a clear 

and unambiguous result, then our interpretive process is over.’ 

It is only when there is ambiguity in the language that we turn 

to extrinsic evidence, such as legislative history.” (quoting 

Richardson v. Bd. of Trs., Police & Firemen’s Ret. Sys., 192 

N.J. 189, 195-96 (2007))).

The provision of the NJFCA that governs the Attorney 

General’s subpoena power, N.J.S.A. 2A:32C-14, provides in 

pertinent part that,

a. If the Attorney General has reason to 

believe that a person has engaged in, or is 

engaging in, an act or practice which violates 

this act, or any other relevant statute or 

regulation, the Attorney General or the 

Attorney General’s designee may administer 

oaths and affirmations, and request or compel 

the attendance of witnesses or the production 

of documents. The Attorney General may issue, 

or designate another to issue, subpoenas to 

compel the attendance of witnesses and the 

production of books, records, accounts, papers 

and documents.

A plain reading of this statutory text makes it crystal clear 

that the Attorney General has broad power to issue subpoenas. 

Other than the prerequisite that the State have a “reason to 

believe” a person has violated the NJFCA or “any other relevant 

statute or regulation,” the text places no temporal restriction 

on the Attorney General’s subpoena power. Because the plain 
3

language of N.J.S.A. 2A:32C-14 does not impose upon the Attorney 

General a requirement that subpoenas be issued before the 

unsealing of a qui tam complaint or an intervention decision,

the Court should not place its own limits on the statute. 

Application of the plain language rule should be the end of the 

analysis. 

II.

Notwithstanding the clear statutory text, the majority 

posits that N.J.S.A. 2A:32C-14 is ambiguous and holds that the 

NJFCA establishes a temporal limitation on when the Attorney 

General may issue subpoenas. The majority’s position violates 

accepted principles of statutory construction. See, e.g., State 

v. Smith, 197 N.J. 325, 332 (2009) (“Plainly, courts are not to 

read into a statute words that were not placed there by the 

Legislature.”). Moreover, even looking beyond the plain 

language of N.J.S.A. 2A:32C-14, there is still no support for 

the majority’s conclusion.

A.

Relative to the federal False Claims Act, 31 U.S.C.A. 3729 

to 3733, the NJFCA was enacted quite recently. Compare 12 Stat.

696 (Feb. 25, 1863), and United States ex rel. Stinson, Lyons, 

Gerlin & Bustamante, P.A. v. Prudential Ins. Co., 944 F.2d 1149, 

1153 (3d. Cir. 1991) (noting the federal “False Claims Act was 

adopted in 1863”), with L. 2007, c. 265 (approved Jan. 13, 
4

2008), and State ex rel. Hayling v. Corr. Med. Servs., Inc., 422 

N.J. Super. 363, 367 (App. Div. 2011) (recognizing the NJFCA

“was enacted on January 13, 2008”). A cardinal rule of 

statutory interpretation is that courts should “presume a 

legislature had existing federal statutes on the same subject in 

mind when enacting a state statute.” Norman J. Singer & J.D. 

Shambie Singer, 2B Sutherland Statutory Construction § 51:6 (7th 

ed. 2008). Indeed, the statute’s legislative history makes 

clear that the Legislature had the federal False Claims Act in 

mind when it adopted the NJFCA. See e.g., Hayling, supra, 422 

N.J. Super. at 372 (quoting NJFCA co-sponsor, Assemblyman Herb 

Conaway, Jr., describing the Act to the General Assembly’s 

Judiciary Committee “as New Jersey’s whistle blower statute 

which tracks the federal law”). Although the Appellate Division 

in Hayling, declined to give interpretive weight to the 

Assemblyman’s statement in considering whether the NJFCA should 

be given retroactive effect, the statement nonetheless 

demonstrates that the NJFCA is modeled on the similarly worded 

federal False Claims Act.

The section of the federal False Claims Act that governs 

the use of civil investigative demands (CIDs) is 31 U.S.C.A.
5

§ 3733.4 That section stipulates that “the [U.S.] Attorney 

General, or a designee, may, before commencing a civil 

proceeding under section 3730(a) or other false claims law, or 

making an election under section 3730(b), issue in writing and 

cause to be served upon such person, a [CID].” Ibid. (emphasis 

added). Thus, the federal False Claims Act, after which the 

NJFCA was modeled, expressly limits the use of CIDs to the time 

period before the Attorney General makes an election whether to 

intervene in a qui tam action or commences a false claims 

action. Those same temporal limitations simply do not appear in 

the NJFCA. The Legislature’s election to depart from the 

federal False Claims Act in this respect evidences legislative 

intent not to impose a requirement that the Attorney General 

issue subpoenas before the unsealing of a qui tam complaint or 

an intervention decision. See Airwork Serv. Div., Div. of Pac.

Airmotive Corp. v. Director, Div. of Taxation, 97 N.J. 290, 294 

(1984) (“Where the Legislature adopts a new law, using as a 

source a statute theretofore enacted in another jurisdiction, 

but omits a provision of the source statute, the omission is

construed as being deliberate.” (citation omitted)), cert. 

denied, 471 U.S. 1127, 105 S. Ct. 2662, 86 L. Ed. 2d 278 (1985).

 

1 “A CID is analogous to an investigative subpoena.” FTC v. Mfrs. 

Hanover Consumer Servs., Inc., 543 F. Supp. 1071, 1073 (E.D. Pa. 

1982).
6

Notably, the Legislature has twice declined to follow the 

federal False Claims Act’s CID provision and place time 

restrictions on the New Jersey Attorney General’s subpoena 

power. When the NJFCA was first promulgated in 2008, the 

federal False Claims Act limited the U.S. Attorney General’s 

power to issue CIDs to the period “before commencing a civil 

proceeding,” 31 U.S.C.A. § 3733(a)(1) (2007), but our State’s 

Legislature declined to incorporate any such restriction into 

the NJFCA.

In 2009, Congress “clarified” the language of the federal 

False Claims Act, including 31 U.S.C.A. § 3733(a)(1), by 

amending it to its current form. See Appendix to Letter from 

Brian A. Benczkowski, Off. of Legis. Aff., U.S. Dep’t of 

Justice, to Sen. Patrick J. Leahy 15-16 (Feb. 21, 2008), 

https://www.justice.gov/archive/ola/views-letters/110-2/02-21-

08-s2041-false-claims-correction-act.pdf (recommending that 

Congress “clarify that the [U.S.] Attorney General (or his 

designee) may issue CIDs in connection with a qui tam action 

prior to the Government’s election to intervene or decline to 

intervene in that action”); see also Pub. L. No. 111-21, § 4, 

123 Stat. 1616 (amending CID provision in section entitled 

“CLARIFICATIONS TO THE FALSE CLAIMS ACT TO REFLECT THE ORIGINAL 

INTENT OF THE LAW” “by striking ‘the Attorney General may, 

before commencing a civil proceeding under section 3730 or other 
7

false claims law,’ and inserting ‘the Attorney General, or a 

designee, may, before commencing a civil proceeding under 

section 3730(a) or other false claims law, or making an election

under section 3730(b)’” (emphasis added)). 

In 2010, after that federal clarification, the New Jersey 

Legislature amended the NJFCA to align it more closely with the 

federal False Claims Act. See Sponsor’s Statement to S. 2534 4 

(L. 2009, c. 265 (approved Jan. 17, 2010)). Although it amended 

several provisions of the NJFCA in response to Congress’s 

amendments to the federal False Claims Act, the Legislature 

chose not to modify the NJFCA in one key respect: it did not 

revise N.J.S.A. 2A:32C-14(a), the provision governing the New 

Jersey Attorney General’s subpoena power. Thus, even though 

Congress amended 31 U.S.C.A. § 3733(a)(1), our State Legislature 

again declined to adopt the time limitations Congress placed on 

the federal subpoena power.5 Accordingly, insofar as N.J.S.A.

2A:32C-14(a) is ambiguous concerning temporal restrictions 

placed on the Attorney General’s subpoena power, the legislative 

 

2 In contrast to New Jersey, other states have adopted the time 

limitations that Congress placed on the U.S. Attorney General’s 

CID power by including such restrictions in their own state 

statutes. See, e.g., Ga. Code Ann. § 23-3-125(b)(1) (2017) 

(limiting Georgia Attorney General’s power to issue CID to time 

period before commencing civil action or making election to 

intervene); 740 Ill. Comp. Stat. 175/6(a)(1) (2017) (same); 

Mass. Gen. Laws ch. 12, § 5N(1) (2017) (same).
8

history of the NJFCA should dissipate any doubts as to the 

Legislature’s intent.

B.

In addition, it is clear that the Legislature knew how to 

include time limitations on the Attorney General’s investigatory 

powers because the Legislature has done so elsewhere. For 

example, our State’s racketeering statute limits the Attorney 

General’s issuance of investigative interrogatories to “prior to 

the institution of a civil or criminal proceeding.” N.J.S.A.

2C:41-5(a). Likewise, New Jersey’s antitrust statute limits the 

Attorney General’s issuance of subpoenas to “prior to the 

institution of a criminal or civil action.” N.J.S.A. 56:9-

9(a)(1). 

When the Legislature imposes certain limits on the Attorney 

General’s investigative powers in some statutes but excludes 

those limits in others, such restrictions should not be inferred 

where excluded. See Richerson v. Jones, 551 F.2d 918, 928 (3d 

Cir. 1977) (“[W]here a statute with respect to one subject 

contains a given provision, the omission of such provision from 

a similar statute is significant to show a different intention 

existed.” (quoting Gen. Elec. Co. v. S. Const. Co., 383 F.2d 

135, 139 (5th Cir. 1967), cert. denied, 390 U.S. 955, 88 S. Ct.

1049, 19 L. Ed. 2d 1148 (1968))). The NJFCA’s silence on 

temporal restrictions in the face of the Legislature’s decision 
9

to impose time limits on the Attorney General’s investigative 

powers in the State’s racketeering and antitrust laws reinforces 

the legislative intent not to limit the Attorney General’s 

subpoena power in this manner when investigating false claims.

C.

Finally, we have “consistently stated that[,] ‘[i]n reading 

and interpreting a statute, primary regard must be given to the 

fundamental purpose for which the legislation was enacted.’” 

State v. Tischio, 107 N.J. 504, 511 (1987) (quoting N.J. 

Builders, Owners & Managers Ass’n v. Blair, 60 N.J. 330, 338 

(1972)), appeal dismissed, 484 U.S. 1038, 108 S. Ct. 768, 98 L. 

Ed. 2d 855 (1988). The text of the NJFCA tells us that it is 

remedial legislation. N.J.S.A. 2A:32C-17 (“This Act shall be 

liberally construed to effectuate its remedial and deterrent 

purposes.”); cf. United States v. Neifert-White Co., 390 U.S.

228, 233, 88 S. Ct. 959, 962, 19 L. Ed. 2d 1061, 1065 (1968) 

(noting that federal False Claims Act is “remedial” and “should 

not be given [a] narrow reading”). 

A basic rule of statutory interpretation is that remedial 

statutes should be construed broadly to effectuate their 

intended purpose. Smith v. Millville Rescue Squad, 225 N.J.

373, 390 (2016) (noting that remedial legislation should be 

“liberally construed”); Young v. Schering Corp., 141 N.J. 16, 25 

(1995) (“Where the Legislature’s intent is remedial, a court 
10

should construe a statute liberally.”). By reading a temporal 

limitation into the NJFCA’s subpoena provision, the majority 

narrowly construes a significant tool that the Attorney General 

routinely utilizes to combat fraud and abuse in State programs 

and procurement. The majority’s reasoning, therefore, runs 

contrary to yet another fundamental rule of statutory 

construction.

III.

In holding that the NJFCA limits the Attorney General’s 

power to issue subpoenas following the unsealing of a qui tam 

complaint or an intervention decision, the majority points to 

N.J.S.A. 2A:32C-5 and N.J.S.A. 2A:32C-6. Specifically, the 

majority highlights sections 5(g) and 6(f) of the NJFCA. The 

majority suggests that those specific provisions should prevail 

over the more general provision governing subpoenas. In 

concluding that sections 5(g) and 6(f) impose temporal 

parameters around the Attorney General’s subpoena power, the 

majority misapprehends the interplay between those statutory 

provisions and N.J.S.A. 2A:32C-14. 

The “specific-over-general” maxim upon which the majority 

relies applies only “when there is a conflict between general 

and specific provisions of a statute.” Wilson v. Unsatisfied 

Claim & Judgment Fund Bd., 109 N.J. 271, 278 (1988); see also In 

re Phila. Newspapers, LLC, 599 F.3d 298, 307 (3d Cir. 2010) 
11

(“Considering the application of the canon ‘the specific governs 

the general,’ the [Supreme] Court reasoned that it only applied 

where the more specific provision clearly placed a limitation on 

the general.” (citing Varity Corp. v. Howe, 516 U.S. 489, 511, 

116 S. Ct. 1065, 1077, 134 L. Ed. 2d 130, 148 (1996))).6

Here, there is no conflict between N.J.S.A. 2A:32C-5(g) and 

N.J.S.A. 2A:32C-6(f), and N.J.S.A. 2A:32C-14. Section 5(g) sets 

limits on the seal period and the Attorney General’s time to 

decide to intervene as of right, not on his time to investigate. 

The majority reasons that if the Attorney General were allowed 

to issue subpoenas after a qui tam lawsuit is unsealed, or after 

the time for making the initial intervention decision as of 

right, the 60-day period in section 5(g) would be rendered 

nugatory. This argument erroneously presupposes that subpoenas 

can be issued only to determine whether to intervene as of right 

in a qui tam suit. The NJFCA makes clear that the Attorney 

General can investigate a relator’s claims for purposes other 

than intervention in a qui tam suit. See N.J.S.A. 2A:32C-14(a) 

(providing that Attorney General may issue subpoenas if he or 

 

3 Accord TracFone Wireless, Inc. v. Comm’n on State Emergency

Commc’ns, 397 S.W.3d 173, 181 (Tex. 2013) (“But the specificover-general canon applies only when two statutory provisions 

are irreconcilable.”); Wik v. Wik, 681 P.2d 336, 340 (Alaska 

1984) (“The rule . . . is that a statute dealing with specific 

subject matter in a detailed way prevails over a more general 

statute only if the two statutes cannot be harmonized.”).
12

she “has reason to believe that a person has engaged in . . . an 

act or practice which violates this act, or any other relevant 

statute or regulation” (emphasis added)); N.J.S.A. 2A:32C-6(h) 

(stipulating that “application of one civil remedy . . . shall 

not preclude the application of any other remedy, civil, 

administrative or criminal”). Hence, reading the NJFCA to 

impose no time limit on the Attorney General’s subpoena power 

does not render section 5(g) meaningless.7

In addition, section 6(f), which permits the Attorney 

General to seek intervention at any time upon a showing of good 

cause, does not conflict with N.J.S.A. 2A:32C-14. By allowing 

intervention for good cause after the seal has been lifted, 

section 6(f) recognizes that the Attorney General might uncover 

additional information through continued investigation that 

would prompt him to intervene later in the matter. One avenue 

by which the Attorney General could uncover additional 

information is through the subpoena power granted by N.J.S.A.

 

4 Furthermore, the federal corollary to 5(g), 31 U.S.C.A.

§ 3730(b)(4), is almost identical, yet Congress placed the 

temporal limit on the U.S. Attorney General’s subpoena power in 

31 U.S.C.A. § 3733(a)(1). See supra Part II.A. This 

illustrates that the U.S. Attorney General’s subpoena power is 

limited by the federal False Claims Act’s subpoena provision, 

not its intervention provision. Consequently, the majority’s 

scrutiny of the NJFCA’s intervention provision, section 5(g),

for a time constraint on the Attorney General’s subpoena power 

is an inapt endeavor; the more natural place for such a limit 

would be in the statute’s subpoena provision, N.J.S.A. 2A:32C14.
13

2A:32C-14. Section 6(f) and N.J.S.A. 2A:32C-14 thus do not 

conflict. If anything, section 6(f) undermines the majority’s 

holding that the Attorney General’s power to issue subpoenas is 

extinguished by the unsealing of a qui tam complaint or an 

intervention decision.

For those reasons, I respectfully dissent from the judgment 

of the Court.