April 26, 2019
Whistleblower attorneys and government attorneys look at certain key factors in deciding whether a matter has the potential to become a successful whistleblower case. We first consider liability — whether the allegations amount to illegal conduct. We then evaluate the
strength of the evidence of fraud. This involves analyzing what the whistleblower knows of the wrongdoing and identifying supporting documents and witnesses. Another important factor is the size of any potential recovery to the government.
Here’s a checklist of factors to consider when deciding whether to come forward as a whistleblower.
Government-funded programs include, but are not limited to: health care programs (e.g., Medicare, Medicaid); national security and defense; mortgage and banking; transportation and public construction projects; education; and, grants sponsored or supported by government funds.
Examples of government-regulated programs include securities laws, tax laws, commodities and futures trading laws, banking and mortgage industry laws, and customs duties and tariffs.
Note: The states of Illinois and California have whistleblower laws addressing fraud committed against private health care insurers. If the fraud occurred in those states, you may have a claim under these laws.
Whether a whistleblower has personal and “non-public” information about the fraud is a complex legal and factual issue. At the simplest level, it means that you did not discover the fraud by reading about it in the newspaper or other public source but rather from your own personal observation or experience, such as your employment.
Successful whistleblower cases require strong evidence. Some of the strongest evidence often comes from a company’s own documents. In general, the law allows a whistleblower employee to take company documents showing the fraud to give to the authorities. You should limit such evidence, however, to only those documents you have access to in the ordinary course of your employment. Documentation is important but not absolutely required in all cases. Similarly, it is helpful if you know of others, such as former employees, who can back up your allegations. You should consult with an attorney before taking any action with respect to documents or witnesses.
While not a prerequisite to a claim, most successful whistleblower cases involve fairly significant sums of money. The amount of potential damages will be a factor in assessing (i) whether it makes sense to pursue a claim and (ii) whether the government will be interested in devoting resources to investigating your case. Sometimes other factors, such as public safety or potential harm to individuals, can offset a relatively “small dollar” case.
Again, while not a prerequisite to a claim (and the majority of cases do not involve this), safety and protection from harm are important considerations for the government prosecutors who will be reviewing your case. This factor can arise in many different forms. For example, patients could face harm in receiving healthcare services, service members could be endangered by defective equipment, or the broader public could be at risk from a defective road or bridge.
In the healthcare context, fraud can impact patient safety and care in myriad ways. Some examples are: providing inadequate or worthless services, ordering unnecessary testing or procedures, promoting prescription drugs for uses that have not received FDA approval and have not been shown to be safe or effective, or neglecting nursing home patients.
Gross negligence, reckless disregard, or deliberate ignorance can serve as the basis of a claim, but intentional fraud and misconduct make the most compelling cases. Simple negligence is likely insufficient for a successful whistleblower case.
Under the False Claims Act, a court can reduce an award if the person bringing the whistleblower case planned and initiated the fraud. If you were the mastermind behind a fraud scheme, you could become the target of a government investigation. A whistleblower who is convicted of a crime for the fraud cannot receive any share of the government’s recovery.
“Initiation” of the fraud (i.e., planning and devising it) is quite different from “participation” in the fraud. Companies sometimes expect or require employees to participate in fraud as part of their employment. Sometimes, companies subtly pressure employees to break the law in order to succeed. Potential whistleblowers may not know at first that they are doing something improper.
While fraud is often a profitable business and most defendants do have sufficient assets, if the fraud is small in scale or the defendant is in poor financial condition, it may not be worthwhile to pursue a claim as a whistleblower.
A government investigation may signal that another whistleblower has already reported the fraud or that the allegations are in the public domain. While none of these would necessarily bar your claim, it is important to consider this factor.
Whistleblowers come to us for a variety of reasons. Most have learned of or even been involved in illegal conduct in their jobs and want to do the right thing. By coming forward, they can expose wrongdoing, set the record straight, and obtain legal advice if they have knowledge of the fraud and fear they could face exposure themselves.
The possibility of a financial award motivates many whistleblowers. There is nothing wrong with that, so long as the information provided is truthful and can be corroborated. Whistleblower laws exist to encourage and reward private citizens who expose fraud. The possibility of receiving an award has motivated many successful whistleblower cases.
Many whistleblowers come to us after they have been fired or otherwise received some adverse employment action. These can be strong cases so long as the employee has clear evidence of fraud.
Whatever their reason for coming forward, whistleblowers must be prepared for a long and uncertain process. There are risks in becoming a whistleblower and no guarantees of success.
If you believe you may have a case, please contact us for a free, confidential consultation.