If you know of wrongdoing or fraud by your employer or other entity, one of the challenges you may face is what to do with that information.
Becoming a whistleblower is one way to make authorities aware of practices that violate the law, steal taxpayer funds, endanger patients or cheat investors.
Can anyone be a whistleblower?
Yes, anyone with specific and detailed information about significant fraud against the government, securities law violations, commodity law violation or tax violations can be a whistleblower and qualify for protection against job retaliation and rewards in certain cases. Whistleblowers usually are employees of the entity violating the law, but they can be a competitor, a subcontractor, industry observer or anyone else who has specific evidence of wrongdoing.
Two major laws that offer whistleblowers in the private sector job protection and rewards in certain types of cases are:
- The False Claims Act. This federal law covers any fraud that causes the government to lose money or pay funds based on false claims, such as Medicare and Medicaid fraud and defense contractor fraud. Many states have similar false claims laws that apply when state or local government entities are defrauded.
- The Dodd-Frank Act. This law, enacted in 2010, created the Securities and Exchange Commission whistleblower program and the Commodity Futures Trading Commission whistleblower program to encourage individuals with knowledge of securities and commodity laws violations to come forward.
Can a whistleblower be anonymous?
Whether a whistleblower can be anonymous depends on the applicable whistleblower law.
Qui tam cases filed under the False Claims Act are filed under seal, which means only the government knows about the whistleblower case and the whistleblower’s identity while the government investigates the allegations. Once the court lifts the seal, usually after the government decides whether to intervene, the lawsuit becomes public.
SEC whistleblower claims and CFTC whistleblower claims are treated confidentially by both agencies. The whistleblower’s identity is protected to the fullest extent possible under the law. However, in certain circumstances, such as a court or administrative hearing, the SEC or CFTC may be required to produce certain documents or information that might reveal a whistleblower’s identity.
Whistleblowers may submit their information anonymously to the SEC and CFTC if they do so through an attorney. In those instances, the attorney is required to certify that the whistleblower’s identity has been verified.
Do I need a lawyer to be a whistleblower?
The False Claims Act requires that attorneys file whistleblowers’ qui tam cases. Under the Dodd-Frank Act, an attorney must file a whistleblower’s claim with the SEC or the CFTC if that whistleblower wants to be anonymous.
If you are considering being a whistleblower, it generally is a good idea to contact an attorney who has extensive experience handling successful whistleblower cases before taking any action. Top whistleblower attorneys would be able to assess your situation and advise you on the best and safest course for you to take given your individual circumstances.
Most whistleblower attorneys work on a contingency basis, meaning their whistleblower clients only pay them if a case is successful and they receive a reward. Initial consultations should be free, and any lawyer who’s considering taking your case should offer to pay your travel costs to meet with him or her.
The lawyer also can suggest how to proceed at your workplace, whether or not you have reported your concerns to your supervisors or through an internal compliance program at work.
Here are excellent whistleblower tips from a former Phillips & Cohen client based on his experience as a whistleblower.
Advice for whistleblowers from a successful whistleblower
Dear Fellow Whistleblower:
If you are reading this, I assume you are trying to decide whether to blow the whistle or you are looking for an attorney to represent you or both.
I, too, was a whistleblower. I am writing to share my experience with you about my early endeavors, searching for the most suitable law firm for representation for blowing the whistle.
I remember looking for that type of information to help me at the beginning of my journey as a whistleblower, but unfortunately without success. Consequently, I have asked Phillips and Cohen to publish this. I truly hope that some of these details may assist and inspire you as you move forward.
Tip 1: Deciding to blow the whistle
Firstly, deciding whether to come forward can be a daunting task. It takes a lot of courage to take such an action and to question whether what the firm was doing was wrong – especially when it involves senior management or executive management.
At first, there will be days you wish to proceed and other days where fear takes hold and you question your actions and are concerned about the unknown events that are about to occur. However, I can say it is the best decision I have made in my life. It ultimately stopped the wrongdoing and changed for the better the way things were done.
As you know, if people can get away with doing things the wrong way, some people will do it. Once it becomes routine or starts making money, those people will justify their actions to continue the wrongdoing.
The ultimate excuse is “Everyone else does it,” but we know that this reasoning is deplorable. Unfortunately this rationale is found in many reputable companies because of the staggering amount of money that is generated by fraud and abuse schemes. This could be in the medical field, financial markets, government contracting or any other industry.
So if you are in a position to blow the whistle and contribute to the benefit of mankind, I admire you. If the fraud or corporate wrongdoing involves management at the top, then the company will most likely have mechanisms in place to avoid detection. Don’t let this deter you – it should make you more determined to come forward. Chances are you have a strong whistleblower case.
Tip 2: A whistleblower’s most important decision: Your lawyer
This is where the law firm you choose comes into play. It is one of the most important decisions you will make. It is so important that no matter what field your fraud is associated with, the law firm that represents you must have experience and expertise in whistleblower cases. Also remember that you will be dealing with this person for years to follow, so your selection process is critical.
I know it will be difficult at the start to find the right attorney because most whistleblowers have never had any experience looking for a lawyer. You most likely will use the internet to research possible law firms for whistleblower cases, especially if you wish to remain anonymous.
I looked at a number of law firms online, spending weeks reading about them and investigating their experience and success with whistleblower cases even before making my first phone call. When I did start making phone calls, I always called the attorney directly but anonymously.
Initially, I contacted two law firms, but I did not feel 100 percent satisfied after each call. Hence, I did not proceed any further with these firms. It was more about having a connection with the attorney. As a result, I contacted another law firm, Phillips & Cohen LLP. I closely examined the attorneys’ expertise, then decided to talk to Erika Kelton at the firm. After two anonymous and lengthy calls with her, she became my attorney from start to finish. I think it’s normal to assess your compatibility with the law firm and attorney that will represent you, so be confident to decide that on your own.
I must say that Erika and her firm were absolutely astounding. Erika was not only my attorney, but she was a great mentor on every aspect of life during this period. Erika and her team at Phillips & Cohen were extremely professional and friendly and guided me through the entire process.
Their advice and experience is commendable, and their honest opinion in forecasting the various scenarios in my case was extremely valuable. Their extent of knowledge from a legal perspective is overwhelming. The firm has a great team of brilliant minds that work together. I applaud them on all their effort and hard work.
Tip 3: What to expect as a whistleblower
After you file a whistleblower case or claim, you will be surprised that the government really appreciates what you do. There are well-established mechanisms in place to assist whistleblowers to clean up these companies. The False Claims Act that allows for “qui tam” whistleblower lawsuits and the Dodd-Frank Act that created the SEC whistleblower program are proof of this. I was really impressed with the way all the various government bodies interacted and worked together to solve the case. It was indeed impressive.
The best advice I can give on what to do as your case proceeds is make the best effort you can to provide honest and complete information about the fraud scheme or wrongdoing. Provide every detail that you are asked to assist in making the investigation process easier for all parties.
You have got to be available at all times to answer questions and provide information. I am not suggesting that you will be called every day, but when questions need to be answered, it’s important to respond swiftly – no matter how busy you are.
Additionally, when you know information is a fact, then state it. When you are unsure, be clear about that, too – for example, if it’s only an opinion and not a fact.
Basically whatever effort you put into the case will be one of the key factors that eventually determines the outcome and level of success – not just in terms of financial rewards but also in terms of success and timing.
Please bear in mind that to resolve the case, it’s not just a matter of knowing who committed the fraud or wrongdoing and stating the obvious. It takes a lot of work and planning to map out the entire scheme and hierarchy. It is crucial to provide solid evidence of the entire scheme rather than just make accusations without facts.
Tip 4: The biggest mistakes you can make when deciding to become a whistleblower
You may have the option of going directly to a governing or regulating body to make the complaint. This is one of the avenues suggested by some online when you research whistleblower cases. But my advice to you is this: Hire a whistleblower attorney first.
Reputable attorneys will take your case on a contingency basis, so you don’t pay anything to them until you receive a reward, and you will owe them nothing if you don’t get one.
Speak to your attorney about your case, and they will advise you on your best options. There could be multiple directions your case could advance. If this is the situation, then an attorney from a whistleblower firm is your best option to manage this entire process for you. Their number one priority will be to win your case no matter which avenue they choose. Consequently, you need to have trust in your attorney, so that you work closely with them at all times.
On another issue, be careful if you decide to look at law firms that do more than represent whistleblowers. If they also practice in other areas of law, there could be a conflict of interest at stake, whether a legal one or an ethical one. Consider whether you want to hire a law firm that also represents companies in the same field and defends them in court, as there are a number of law firms that do that. Similar concerns about conflicts of interest also could arise when seeking independent counsel for reviewing agreements on the case.
Tip 5: Stay quiet about your whistleblower case
Another important piece of advice: Don’t tell anyone about your whistleblower case. I’ll repeat that in another way: Don’t tell anyone that you have come forward to be a whistleblower.
The only person you should talk to about your case and trust is your attorney. There will be a temptation at times to share this experience with an important friend or colleague. Take my advice: Don’t do it. There is much at risk. If you have a good attorney you can get advice on this. I am certain your attorney can share many experiences from their previous whistleblower clients on this matter.
One last point: It’s important to act swiftly, both from the point of view of stopping the fraud or wrongdoing from continuing as well as making it more likely you will get a reward from the government. Quick action is paramount.
Good luck and stay determined.
Your Fellow Whistleblower
(Although my case ended successfully, I have chosen to remain anonymous. I’m sure you understand.)
For additional tips about being a whistleblower, see:
Contact a whistleblower attorney at Phillips & Cohen
If you would like to speak confidentially with a whistleblower attorney and have your matter reviewed, Phillips & Cohen LLP offers free and confidential reviews of whistleblower cases. The firm has dedicated its law practice to representing only whistleblowers for nearly 30 years. We are the most successful law firm representing whistleblowers, with more than $12.3 billion in recoveries from our cases.