Components of a Successful Whistleblower Case

Posted on June 15, 2021

Whistleblowers are crucial to maintaining a fair and open society. By exposing illegal and unethical conduct, whistleblowers help to root out corruption, promote transparency, and recover stolen taxpayer money.

While the government offers incentives and protections to whistleblowers, reporting fraud can still be a difficult decision. Before you come forward, you will want to make sure you have a strong case that’s likely to succeed. If you have evidence of fraud or a scheme to defraud the government, Morgan & Morgan’s whistleblower/qui tam lawyers can help to ensure that your courage results in justice.

Are You a Whistleblower?

Having evidence of wrongdoing does not automatically make you a whistleblower. To officially be a whistleblower—which means you will be legally protected from retaliation—you must make what is known as a “protected disclosure.” Different whistleblower laws, including the False Claims Act (FCA), the Whistleblower Protection Act (WPA), and the Dodd-Frank Act define what counts as a protected disclosure.

You do not need to be an employee to blow the whistle. Employees frequently act as whistleblowers, but independent contractors, subcontractors, and others can also become whistleblowers.

Do You Have Evidence of Fraud?

Whistleblowers must have evidence to support their claims of fraud. Generally, the more specific and credible the evidence, the more likely it is to be investigated by the government. The evidence does not have to be firsthand. Secondhand information about fraud can be equally useful to authorities. However, some whistleblower programs, including the SEC whistleblower program, require the submission of “original information.”

The types of evidence a whistleblower needs vary based on the industry. And keep in mind that it may be illegal in your state to record a conversation without the other party’s consent. Further, the whistleblower must know that the evidence that he/she hands over to their attorney must be relevant to the fraud. Thus, merely taking a work computer filled with information, relevant and non-relevant, is not the best evidence collection practice. In fact, the taking of non-relevant information from your employer is not only not helpful, but it can also create liability issues for the whistleblower.  For this reason, it is critically important for potential whistleblowers to consult with an experienced whistleblower attorney as early on in the case as possible in order to strengthen the case and concurrently to eliminate any potential legal risk from disclosing the employer’s non-relevant information.

Finally, as it relates to healthcare and potential HIPAA violations, the law allows a whistleblower to reveal sensitive protected health information (PHI) to an attorneys so long as the whistleblower is engaged in a good faith investigation involving fraud against the government. An experienced whistleblower/qui tam attorney understands how to treat the PHI to prevent any risk of a HIPAA violation.

Does Your Claim Fall Within the Statute of Limitations?

There are legally imposed deadlines (known as statutes of limitations) for filing whistleblower claims. The actual filing deadline depends on the federal and state statutes that governs the type of wrongdoing that is reported. For example, under the qui tam provision of the federal FCA, a whistleblower lawsuit must be filed within six years of the FCA violation, or three years from when the government knew (or should have known) of the violation. For SEC whistleblower cases—and many other federal whistleblower cases—the statute of limitations is five years from the date of the alleged violation.

Waiting too long to file a claim could invalidate your whistleblower claim, so it is critical to check which statute applies to your proposed case by retaining an attorney.

How Do You Prepare The Winning Complaint and Disclosure Statement?

Preparing a winning complaint is not an easy task. In fact, the legal and practical complexities involved in filing a successful whistleblower case are challenging, even for very experienced qui tam attorneys. As noted, the challenges are not merely legal, but involve such practical litigation strategies such as selecting the best jurisdiction in which to file the case or what information should be included in the complaint versus the disclosure statement.

Under the FCA statute, the whistleblower is required to submit all relevant information pertaining to the fraud to the government and that information must be either in the complaint or in the disclosure statement. An experienced qui tam attorney knows that a well-drafted disclosure statement can be just as important as the complaint. This is so because the disclosure statement should serve as the blueprint for the government’s investigation. A good and credible disclosure statement should provide the government with practical information like what computer programs and where in those program files the defendant is storing corroboration of the fraud. Also, the disclosure statement should regularly contain useful investigative information like a comprehensive timeline and a corroborating witnesses index. Ultimately, the experienced qui tam attorney understands the value of a well drafted disclosure statement because it is intended to help the government’s investigation of the whistleblower’s allegations.

Do You Need a Whistleblower Attorney to File Your Case?

Legally, the answer is it depends on the whistleblower program. For some like the FCA, the answer is yes, but for others like the SEC or the IRS, you are not required legally to be represented by an attorney. With that said, a wise whistleblower will always choose to be represented by an experienced whistleblower attorney. There are many reasons for retaining an experienced whistleblower attorney, below those reasons are laid out:

Federal False Claim Act: The federal FCA mandates that an attorney file a qui tam case on behalf of the relator (aka whistleblower). The law requiring attorneys to file is because: 1) these cases are filed in federal court in the name of the U.S.A. and 2) many of these cases are incredibly complex. Hence the law requires an attorney to file the whistleblower case to protect the integrity of the alleged claims.   

SEC whistleblower award program: The SEC program does not require attorney representation to file a Tip, Complaint, Referral (TCR) and receive a bounty award. Also, unlike the FCA, the SEC program permits the whistleblower to file anonymously. However, should the whistleblower choose to remain anonymous, the whistleblower must have attorney representation. With all that said, an experienced whistleblower attorney is incredibly valuable in SEC cases because the TCR submission process has very particular requirements and putting together a successful case requires significant experience in both the submission process as well as preparing the case.

IRS whistleblower award program:  The IRS program, like the SEC program, does not require attorney representation.  However, like the other whistleblower programs, an experienced whistleblower attorney is vitally important to winning the case due to the need to properly prepare the cases as well as knowing how (if you qualify), where, and when to file an appeal of a denial for an award.

Morgan & Morgan’s Contingency-Fee Whistleblower Attorneys

The whistleblower attorneys at Morgan & Morgan are part of the largest plaintiffs’ law firm in the country. Protecting the People, not the powerful, is our mission. That mission extends to helping whistleblowers seek justice and receive every incentive and protection the law guarantees them.

We represent whistleblowers on a contingency fee basis; our attorneys only receive a fee if you receive a financial reward from the government. Contact us for a confidential review of your case.