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September 26, 2018 False Claims Act Information

The Pros and Cons of Whistleblowing

If you observe actions that you believe are illegal and cheating the government, what should you do? What are the pros or cons of deciding to report that misconduct to someone – possibly someone within your company, who could fix things? Or reporting to a regulatory agency that your business interacts with, such as the Department of the Army, if you work for a defense contractor? Or you could choose to consult with a private attorney who might help you decide if you want to file a lawsuit under the False Claims Act on behalf of the government.

Reasons to Take Action

If you find cheating offensive, perhaps because it leads to government benefits not being available to people who need them, or you don’t like seeing taxpayer dollars wasted, or because the misconduct creates safety hazards when unsafe or untested products are put into the market, then you should consider taking some action. For many people, it comes down to a few simple questions:

  • Is the conduct wrong?
  • Does it need to be stopped?
  • Should the perpetrators be held accountable for what they’re doing?

Reasons to File a False Claims Act Case

The advantages of consulting with a lawyer and considering filing a case under the False Claims Act are basically fourfold:

You Will Have Someone to Represent Your Interests

First, you will have someone to pay attention to the misconduct you are reporting. Unlike your employer, who might try to sweep things under the rug or even fire you for your efforts, or a government bureaucracy that might not follow through, an experienced qui tam lawyer will help you make a careful evaluation of your evidence and the nature of the wrongdoing. Almost all qui tam lawyers will evaluate your case and take on the representation on a contingency basis, meaning that you do not owe the lawyers money unless your case is successful.

You Will Have Access to Effective Resources

Second, you will have the combined resources of both private and government lawyers to investigate and prosecute the wrongdoing. Private lawyers work closely with the government prosecutors to explain the nature of the violations you’ve witnessed and help organize your evidence for the prosecutor’s consideration.

You Will File the Lawsuit Under Seal

Third, you will be able to remain anonymous during the investigatory part of the case, although your identity will ultimately be revealed. If you still work for the employer you are reporting, then it might not work out well if you simply report your concerns to your employer. As we’ll discuss below, employer retaliation may become an issue even if you choose to bring a qui tam lawsuit, but there is generally a considerable delay before your identity is revealed.

You Might Receive a Financial Reward

And finally, the government will share part of any money that it recovers as a result of your actions if your case is successful. A successful whistleblower will typically be awarded between 15 – 30% of the money that the government recovers, which can be tens or hundreds of millions of dollars depending on the fraud you are reporting. The professional group that most whistleblower lawyers belong to, Taxpayers Against Fraud, calls this “incentivizing integrity.” Think about it – you are doing the right thing by calling out cheating, so you are given a financial incentive to do so because the government realizes how important and how difficult it is for people to come forward.

Potential Risks and Downsides

“There’s no such thing as a free lunch.” That popular saying has special meaning in the world of false claims or qui tam litigation. As we just mentioned, the government will give a successful whistleblower a share of any money recovered because the information that a whistleblower brings is invaluable to the government’s efforts to fight fraud AND because whistleblowing is a difficult path to tread.

So what are the risks? Basically, job consequences such as retaliation; difficulties with co-workers; difficulties resulting from not being able to identify yourself; and lengthy delays and frustrations when the process does not turn out as you hoped.

You May Experience Retaliation

First and foremost, whistleblowers are typically retaliated against by their employers, even though such retaliation is prohibited. Once it is known who blew the whistle, an employer will frequently fire or demote the person, despite the legal protections. If that happens, you will have the opportunity to sue the employer, but that’s not a guaranteed result and it can be a long time coming. As we tell people, the right to sue does not pay the mortgage. So the financial consequences can be harsh, sometimes even interfering with your ability to find another job.

You May Receive Negative Reactions from Coworkers, Family or Friends

Different people react differently when they find out that someone blew the whistle at work. Ideally, people will applaud your integrity and grit and be appreciative of your efforts for the public good. But sometimes your friends or colleagues at work might end up in trouble, even if you had no reason to suspect they were involved with the wrongdoing. Or they might simply think that you were disloyal for filing claims. Some fellow employees might even be resentful if you are awarded a large sum of money and wonder why you didn’t ask them to participate with you. Family members may resent the financial hardship that your case has caused or find it difficult to support you as you deal with the stress of a lawsuit.

You Will Have to Stay Silent

A qui tam lawsuit is filed under seal, meaning  you cannot talk about the lawsuit in any way. While the seal gives you anonymity for a time, it can be very difficult to avoid breaching the seal. For example, if you are fired after reporting internally, and you then file a False Claims Act case, you will probably not be able to explain to people why you were fired. If you continue to work at the company, it can get very uncomfortable as the government starts investigating and everyone starts to wonder who the whistleblower might be. You might even be asked questions that you cannot answer honestly. There are also complications if you become involved in divorce or bankruptcy proceedings.

Cases Can be Unsuccessful

Once you consult a lawyer, there will be an ongoing vetting process as you try to bring your case to a successful outcome. First, it might be difficult to find a lawyer, since most firms turn down the majority of cases that they look into. Second, even if a law firm files your case, the government then has to decide if it will intervene, and the chances of that are only about one in five. The legal process can drag on, with delays of three, four, or five years not uncommon. If the government declines to join the case, you and your lawyers can proceed anyway, but that is expensive, fraught with challenges and not all that likely to happen. And even if your case gets into active litigation, there are numerous ways that the case might be unsuccessful – the facts don’t pan out, witnesses aren’t forthcoming, the law isn’t favorable, the government agency that you believe was defrauded isn’t interested in supporting your case, the judge is hostile, etc. It can be incredibly frustrating and difficult to see what you believe to be strong claims not be resolved to your satisfaction.

People who are considering filing an action should take all of these factors into consideration.  It is often very helpful to have a skilled and experienced qui tam attorney help you make this decision.

Contact Us to Learn More

Do you need a Whistleblower Lawyer or want to know more information about Qui Tam Law and your rights under the False Claims Act?

There are three easy ways to contact our firm for a free, confidential evaluation with one of our whistleblower attorneys:

  1. Fill out the contact form on this page.
  2. Email [email protected]
  3. Call (844) 781-3088

Your submission will be reviewed by a Berger Montague qui tam attorney and remain confidential.