Whistleblower FAQs
We know you may have some questions. We’ve answered some common ones below.
Common Questions
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Whistleblowers are people who report misconduct or wrongdoing. They are often referred to as “relators.” Whistleblowers play a critical role in letting the government and the public know about:
laws that have been broken
rules or regulations have been violated
a government contractor cheating on a contract or misusing government funds
a company lying about its products, finances or cheating on its taxes
a company creating or perpetuating a danger to public health and safety
and much more.
Whistleblowers are people who feel like they must speak out.
Whistleblowers protect others.
Whistleblowers can receive up to 30% of any funds recovered as a result of a government investigation or lawsuit. These rewards can be in the millions.
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Anyone from a janitor to the CEO and everyone in between can be a whistleblower. You do not have to be a current or former employee, you do not need first hand evidence of the fraud or misconduct yourself or have documentary evidence. You do not need to be an American citizen or resident. And you may even have been involved to some extent in the misconduct. You can even be a corporate competitor.
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Whistleblowers have substantial protections such as:
Confidentiality: Qui tam complaints are typically filed under seal, meaning they are kept confidential initially. This allows the government to investigate the allegations without the defendant knowing about the case. It provides relators with protection against retaliation while the case is under investigation.
Anti-Retaliation Provisions: Over a dozen laws, such as the False Claims Act, Dodd Frank Act, and Internal Revenue Act contain provisions that prohibit employers from retaliating against employees who report fraud. If a relator faces retaliation such as termination, demotion, harassment, or threats, they may have legal recourse to seek remedies, including reinstatement, back pay, and compensatory damages.
Whistleblower Rewards: Qui tam relators may be eligible to receive a percentage of the recovered funds as a reward or whistleblower bounty. This serves as an incentive for individuals to come forward and report fraud, as they can potentially receive a substantial financial award if the case is successful.
Job Protection: Relators may have job protection, meaning they cannot be fired or face adverse employment actions solely based on their participation in the qui tam case. These protections help ensure that individuals who expose fraud are not unfairly penalized by their employers.
Legal Representation: Relators have the right to seek legal representation to guide them through the legal process and protect their interests. Attorneys experienced in qui tam cases can help whistleblowers understand their rights, assist in filing the complaint, and advocate for their protection throughout the legal proceedings.
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Whistleblowers can often remain anonymous. Many jurisdictions provide mechanisms for anonymous reporting to encourage individuals to come forward without fear of retaliation. For instance, in the United States, agencies like the Securities and Exchange Commission (SEC), Internal Revenue Service (IRS), and the Occupational Safety and Health Administration (OSHA) offer procedures for confidential or anonymous whistleblowing. While anonymity can offer significant protection, it is not always guaranteed, and the identity of the whistleblower might eventually be revealed during investigations or legal proceedings.
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Participating in the fraud does not prevent the whistleblower from recovering or enjoying the protections of whistleblower laws. This is particularly the case if a whistleblower participated in the fraud unknowingly or at the direction of a superior. In fact, such individuals often have access to exactly the sort of information necessary, and the law recognizes that to prevent ongoing fraud we need such people to come forward. While the whistleblower recovery may be reduced, a whistleblower will be barred from receiving a reward only when the whistleblower planned or initiated the fraud, or is ultimately convicted of a crime stemming from the reported fraud.
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That’s not unusual. Whistleblowers often spend years trying to address wrongful conduct before considering a formal submission or filing for a reward. They may have previously reported the fraud or misconduct internally to the company or externally to a government agency. Typically, this prior reporting does not hinder them from formally filing a case or seeking an award. If you think you have a case and are worried about how previous reports might affect it, consulting with an experienced whistleblower attorney is advisable.
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Whistleblowers often find satisfaction in sharing their story and evidence with counsel, the government, and the public. It can be immensely rewarding to finally be heard and have the evidence investigated. However, becoming a whistleblower is not for everyone. The process can be lengthy, isolating, and frustrating. Firstly, being a whistleblower does not guarantee a significant financial recovery. While some receive substantial bounties, these cases are rare. Secondly, the experience can be exhausting and unpleasant. Despite legal protections, the risk of retaliation or social alienation is very real. Thirdly, the process often takes several years, during which whistleblowers may feel out of the loop and powerless as the government conducts its investigation. The government typically keeps the progress of its investigations confidential and may not communicate regularly. Additionally, whistleblowers are usually prohibited from discussing their case with anyone other than their attorneys or the government, which can be challenging.
Given the taxing nature of the process, the decision to become a whistleblower should not be taken lightly. It's crucial to find a lawyer who will be honest about the risks and rewards involved.
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The foundation of any whistleblower claim is solid evidence that fraud or misconduct covered by a whistleblower reward program has occurred. While the whistleblower does not need to have directly witnessed the wrongdoing, they must possess concrete and specific evidence. Mere suspicion or belief is insufficient. Identifying the "who, what, where, when, why, and how" of the misconduct is particularly valuable. Detailed knowledge of the specific facts will greatly enhance the strength of your claim.
Typically, you should provide the government with new information that it does not already possess and might not otherwise obtain. The evidence should not primarily come from public sources such as the press, internet, TV, or government records. However, public information can be used in certain cases if you offer a unique analysis that reveals the existence of the fraud or misconduct.
Gathering evidence of fraud or misconduct is the first step in bringing your whistleblower claim. Documentary evidence like emails, internal testing or studies, billing records, test results, etc, is not necessary, but will help support your claim. Bring receipts. Witnessing the conduct first-hand helps but is not required.
What To Expect
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Choosing a lawyer for a qui tam case is a critical decision, as these cases can be complex and challenging. Here are some steps and tips to help you find the right lawyer:
Specialization in Qui Tam/Whistleblower Cases: Look for a lawyer or law firm with experience and a proven track record in handling qui tam cases under the False Claims Act (FCA). This specialization is crucial as qui tam cases require specific legal expertise.
Experience with Government Agencies: Find out if the lawyer has experience dealing with the Department of Justice (DOJ) and other relevant government agencies. Successful qui tam cases often involve significant interaction with these entities.
Professional Associations: Membership in professional associations such as the The Anti-Fraud Coalition (TAF) or the National Whistleblower Center can be a good indicator of a lawyer’s commitment to this area of law.
Initial Consultation: Many lawyers offer a free initial consultation. Use this opportunity to discuss your case, ask questions, and gauge the lawyer’s expertise and interest in your case.
Reputation and References: Research the lawyer's reputation. Look for reviews, testimonials, and references from previous clients. You can check online reviews, legal directories, and professional associations.
Resources and Team: Determine if the lawyer has the necessary resources and a team to support a complex and potentially lengthy qui tam litigation process.
Fee Structure: Discuss the lawyer’s fee structure. Qui tam lawyers typically work on a contingency fee basis, meaning they only get paid if you win the case. Ensure you understand their fee percentage and any other potential costs.
Comfort and Communication: Choose a lawyer you feel comfortable with and who communicates clearly. The lawyer should be someone you trust and feel confident will represent your interests effectively.
Conflict of Interest: Ensure the lawyer does not have any conflicts of interest that might affect their ability to represent you impartially.
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Most lawyers and law firms take whistleblower cases on contingency. This arrangement ensures that the attorney's fees are contingent upon the whistleblower securing a recovery from either the government or the fraudulent company. While this structure entails no upfront costs for you, it underscores the importance of selecting a law firm with the financial capability to dedicate the resources needed to effectively represent you throughout what may be a lengthy process, until a recovery is achieved.
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Procedures vary across different whistleblower programs. For instance, under the federal False Claims Act and similar state laws, whistleblowers are required to file a qui tam complaint in court and submit a detailed "Disclosure Statement" outlining the alleged misconduct to the government. In contrast, under the SEC and CFTC Whistleblower Reward Programs established by the Dodd-Frank Act, whistleblowers must complete a whistleblower form summarizing the fraud or misconduct instead of filing a formal court complaint. Similar procedures apply to IRS whistleblower submissions and those under the Motor Vehicle Safety Whistleblower Act.
Following the filing of these claims, typically, you and your whistleblower attorney will meet with the relevant government agency to discuss your allegations face-to-face. These initial meetings, often attended solely by the government and your legal counsel, are crucial opportunities to present your evidence and legal arguments in a clear and compelling manner. The government typically has limited time and resources available for handling fraud or misconduct cases, so the outcomes of these early discussions often shape the future direction of your case.
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It means that the fraudster or defendant will not learn of the case while the government investigates. The case is sealed so it does not become public. This gives the government the chance to investigate the complaint and determine whether they want to intervene. Under the False Claims Act, complaints are sealed for an initial sixty days, but the government may — and often does — request that the time be extended, and extensions can last months or even years. While the case is sealed, the whistleblower cannot talk about the lawsuit with anyone other than their lawyer and the government attorneys and agents assigned to the case.
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During its investigation, the government may conduct interviews with witnesses, including yourself, examine documents and other evidence, and gather information from relevant agencies. Requests for documents related to the alleged fraud will likely be made to both defendants and involved government entities. It is crucial for the whistleblower to remain accessible, cooperative, and responsive to the government's information requests during this phase. Additionally, it is imperative that the whistleblower maintains confidentiality regarding the case while it remains under seal. Throughout these processes, your experienced whistleblower attorney will provide guidance and support.
In cases where the alleged conduct may involve potential criminal violations, the government may enlist the FBI, execute search warrants, carry out raids, or convene a grand jury. Whistleblowers often have limited visibility into criminal investigations, even if they were initiated based on the whistleblower's information.
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The duration of an investigation in a qui tam case can vary significantly depending on several factors. These include the complexity of the allegations, the amount of evidence to review, the resources available to the investigating agencies, and whether the government decides to intervene in the case. Here are some general points to consider:
Initial Review: After a qui tam complaint is filed under seal, the government typically has 60 days to investigate the allegations and decide whether to intervene. However, this period is often extended multiple times, with investigations sometimes taking several months or even years before the government makes a decision.
Government Intervention: If the government decides to intervene, the case may proceed more quickly due to the additional resources and authority the government brings. However, the investigation can still take a substantial amount of time, particularly if the case is complex.
Non-Intervention: If the government declines to intervene, the whistleblower (relator) can proceed with the case independently. In these instances, the timeline can vary widely, as the relator and their legal team will need to conduct their own investigation and litigation.
Litigation: Once the investigation phase is complete and the case proceeds to litigation, the timeline will depend on the court's schedule, the complexity of the legal issues, and whether the parties engage in settlement discussions.
Settlements and Resolutions: Many qui tam cases are resolved through settlements rather than going to trial. Settlement negotiations can add additional time to the overall process.
In summary, while some qui tam investigations might be resolved within a year, many can take several years from the initial filing to final resolution.
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When the government intervenes in a qui tam case, it assumes primary responsibility for prosecuting the action. The Department of Justice (DOJ) typically conducts its own investigation to decide whether to join the whistleblower's lawsuit. If the government intervenes, it significantly increases the likelihood of a successful outcome, as it brings substantial resources and legal expertise to the case. The whistleblower, known as the relator, continues to play a role and can still receive a portion of any recovered funds, usually between 15-25%. Government intervention often leads to settlement negotiations, and if the case proceeds to trial, the government's involvement generally enhances the credibility and strength of the allegations.
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If the government declines to intervene in a qui tam case, the whistleblower, or relator, has the option to proceed with the lawsuit independently. While the government’s decision not to intervene might be seen as a setback, the relator can still pursue the case on their own, often with the assistance of their legal counsel. The burden of prosecuting the case and proving the fraud lies with the relator and their attorney. Should the case result in a successful judgment or settlement, the relator is entitled to a higher percentage of the recovery, typically between 25-30%. Although more challenging without government support, relators can still achieve significant recoveries if they present a strong case.
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In a qui tam case, the amount a relator can recover depends on several factors, including whether the government intervenes and the total amount recovered in the case. Generally:
If the Government Intervenes
The relator can receive between 15-25% of the total recovery, including any settlements or judgments. The exact percentage depends on the relator's contribution to the case and other relevant factors.
If the Government Does Not Intervene
The relator is entitled to a higher percentage, typically between 25-30% of the total recovery. This reflects the additional risk and effort required to pursue the case independently.
The total recovery amount includes damages, fines, and penalties, which can be substantial, especially in large fraud cases. Additionally, the relator may also be entitled to reimbursement for reasonable expenses, attorney’s fees, and costs incurred in bringing the action.