Jump to Navigation

Phillips & Cohen in the News - Experts on Whistleblower Cases

Phillips & Cohen's expertise with whistleblower cases - including those brought under the qui tam provisions of the False Claims Act and claims filed with the Internal Revenue Service, Securities and Exchange Commission and the Commodity Futures Trading Commission whistleblower reward programs -- is well recognized in the media. Below are excerpts from stories where Phillips & Cohen attorneys have been quoted about various whistleblower programs and whistleblower issues.

News articles about Phillips & Cohen's whistleblower cases are listed on a separate page.

"Judge Orders Mediation in Guardrail Lawsuit," The New York Times, 10/28/14.

Erika A. Kelton, a whistle-blower lawyer with Phillips & Cohen who is not involved in the litigation, said it was not uncommon for both sides of a False Claims Act case to discuss a potential settlement after a liability finding.

"It becomes a question of whether a compromise can be worked out to facilitate a settlement both sides can live with, or if they'll continue fighting in court," Ms. Kelton said.

"DaVita Whistle-blower Settlement Marks Growing Focus on Kickbacks," Modern Healthcare, 10/23/14.

A nearly $400 million settlement between DaVita Kidney Care and the government reflects what experts see as a growing eagerness among federal fraud enforcers to go after healthcare business relationships that allegedly amount to kickbacks.

Eric Havian, the lawyer with the whistle-blower firm Phillips & Cohen who represented [whistleblower David] Barbetta, attributes the rise in kickback-based lawsuits to a 2010 clarification by Congress that anti-kickback violations are violations of the False Claims Act. He also pegged the increase to more awareness on the part of whistle-blowers.

"Guardrail Maker Trinity Industries Liable for Fraud in Texas," The New York Times, 10/21/14.

Legal experts in False Claims Act cases say the $175 million verdict is on the higher end of recent judgments.

"There's no denying it's a big number," said Erika A. Kelton, a whistle-blower lawyer with Phillips & Cohen who is not involved in the Trinity litigation.

Ms. Kelton said that the government usually joins the fray in successful False Claims Act cases. But in the Trinity case, the Federal Highway Administration did not participate.

"4 Tips on Scoring Big for IRS Whistleblowers," Law360.com, 8/18/14.

While killer evidence is key in a whistleblower case, [Erika] Kelton says experts should also be an integral part of a whistleblower's due diligence process, as they can lend authority to his or her claim.

"In advance of submitting a claim, we often consult with experts in the whistleblower's field, flesh out all of the facts, and then also prepare a list of potential witnesses for the IRS to speak to, which includes documents they should request, the nature of the information contained in those documents, what areas of expertise the experts have, and what they would likely say," Kelton says.

This step is important, because the IRS' due diligence process is quite lengthy and involved.

"Davis Polk Report: A Trickle of Whistleblower Awards," The Litigation Daily, 6/10/14.

"[The SEC is] making pretty good progress," says Eric Havian of Phillips & Cohen. "Compared to the IRS whistleblower program, they're doing fabulously well." He adds, "These tend to be complex cases that take a while to resolve, and the award determination process can take a while."

Havian commends [Sean] McKessy [Chief, SEC Office of the Whistleblower] for being a "tremendous proponent" of the program. The plaintiffs lawyer even predicts that the SEC will eventually wish it had a bigger pot for awards. "I think we'll look back at that amount and say, 'Wow. That wasn't enough.'"

"New Audits May Recover Missing Millions - Or Not," The Center for Public Integrity, 6/9/14.

Mary Inman, a San Francisco lawyer who represents whistleblowers, said officials have been concerned for years that risk scores if abused could offer a "new way to fleece" the Medicare program. "This is a weak spot for CMS," she said, noting that it "hasn't hit the public realm yet."

"CFTC Set to Make First Award To Whistle-Blower Under 2011 Program," Securities Law Daily, 5/20/14.

According to whistle-blower lawyer Erika Kelton, Phillips & Cohen LLP, Washington, the award shows that the program is off to a "promising" start more than two-and-a-half years after its inception...

"The agencies have no understanding of the fraud when the submissions are made," Kelton observed. "They need to organize their enforcement team, investigate, then they need to negotiate or in some way take enforcement action. That takes a lot of time."

"FCA Wave Sparks Debate Over DOJ Power to Boot Weak Suits," Law360.com, 5/2/14.

"I think the number of cases where [the Justice Department] could make that call are probably not as many as the defense bar thinks exist," said Claire M. Sylvia, an attorney at whistleblower firm Phillips & Cohen LLP.

"The Plight of an Overseas Whistleblower," i-Sight, 4/1/14.

With an influx of overseas whistleblowers participating in a US government program that offers rewards for uncovering legal violations, it's not uncommon for attorney Erika Kelton to get international calls from people "who are extremely uncomfortable with the business practices that exist internationally."

"Whistleblowers Cash In On Financial Firms' Misdeeds," Investors.com, 3/31/14.

"The SEC is really encouraging them to file their submissions and assuring them that they will be vigorously investigated," said Eric Havian, a San Francisco-based lawyer who practices whistleblower law. "You're going to see a lot of financial fraud coming to light that had been buried for many years."

"Lawsuit brings to light secrecy statements required by KBR," The Washington Post, 2/19/14.

Tim McCormack, a lawyer who specializes in whistleblower cases, said that he has seen numerous confidentiality agreements but that the one used by KBR is particularly stark because it threatens employees with termination and possible legal action if they speak out.

"This is mostly about trying to scare someone into not talking," McCormack said. "It's very effective to say you will be fired or sued. This is a very big company with lots of resources."

"The Perks of Being a Whistle-blower," Newsweek, 1/30/14.

"We have clients with whistle-blower claims for billions of dollars in unpaid taxes," not including penalties and interest, says Eric Havian, a lawyer at Phillips & Cohen in San Francisco. "The multinationals with offshore operations are the ones where you see some of the biggest tax scams."

"Walk, Don't Run - Experts Advise Prudence and Caution for Potential Whistleblowers," CFA Institute Magazine, March/April 2013.

Do make sure that you really want to file a whistleblower claim. "Once it's filed, it sets in motions something that you cannot stop," says Erika Kelton, partner in the Washington, DC, law office of Phillips & Cohen. "It's important to thoroughly reflect on, and be prepared to do this and assess how long it will take, what to expect, how disruptive to your life this can be, and what risks you are taking."

"Tax Court Scrutinizes Whistleblower Office's Delayed Decision," Tax Analysts, 3/14/13.

Erika A. Kelton of Phillips & Cohen LLP told Tax Analysts that the Insinga order is important because "the Tax Court shows it is open to a more common sense approach than the IRS has often been willing to take -- i.e., considering whether there is a "de facto" rejection, rather than simply a formal "technical" rejection." Also, the possibility of jurisdiction under the APA is encouraging because "that could be very helpful for future challenges to agency delay and inaction," she said.

"Government Joins Suit Against Armstrong," The New York Times, 2/22/13.

To win the case, the government must prove that it was damaged by the violation of the contract, said Eric R. Havian, a lawyer at Phillips & Cohen and an expert in False Claims Act cases.

"They have to say, look, the Postal Service didn't get what we bargained for, you gave us a black eye because of the doping, and that's a legitimate case," Havian said.

"DOJ Intervenes in Whistleblower Suit Against Lance Armstrong," Legal Times, 2/22/13.

"The United States invests considerable resources in the investigation of cases, interviewing witnesses and reviewing documents, to consider the validity of the claim by the whistleblower," said Colette Matzzie of the whistleblower firm Phillips & Cohen in Washington. "It's a lengthy internal deliberative process for the government." Matzzie said DOJ's intervention can be viewed as a validation of Landis' claims.

"California AG's false claims case vs S&P: secret route to issuers?" ThomsonReuters News & Insight - On the Case, 2/11/13.

The unseen target of California's suit, according to whistle-blower lawyer Eric Havian of Phillips & Cohen, could be MBS and CDO issuers.

Discovery in the state's case against S&P, Havian said, will likely turn up evidence of what banks knew about the ratings S&P supplied. "If issuers knew the ratings were false and they sold securities to state pension funds, they would absolutely be liable," he said. "That's an easy FCA case."

"Erika Kelton on the Rise of SEC Whistleblower Cases," Corporate Crime Reporter, 2/5/13.

Erika Kelton is a partner at Phillips & Cohen in Washington, D.C. She's a pro at bringing whistleblower cases.

She has a couple of billion-dollar-plus False Claims Act qui tam cases under her belt . . . . But a significant amount of her caseload is now SEC/CFTC and tax cases.

"Floyd Landis whistleblower suit targets more than Lance Armstrong," The Washington Post, 1/17/13.

False Claims Act whistleblower suits, which date from the Civil War era, are a mechanism for encouraging someoe with information about fraud against the government - oftentimes an "insider" in a case of wrongdoing - to come forward, explains Peter Chatfield of Washington-based Phillips & Cohen, which specializes in such cases.

"The plaintiff's reward is a percentage of the money that's recovered - 15-25 percent if the U.S. Department of Justice joins the action and takes the lead role in the case, or 25-30 percent if the private plaintiff pursues the case without the government's help or resources," Chatfield said.

For stories prior to 2013, please see Phillips & Cohen in the News -- Archive.

P&C