Who Can Be a Whistleblower?

Over the past 20 years, our firm has represented a number of whistleblowers, who are able to report fraud against the federal government, and recover a substantial financial reward. When I talk about whistleblowers, I’m referring to people who file lawsuits under the False Claims Act. People who become aware of fraud by a company who is billing the federal government. Now, we see False Claims Act cases in many different types of industries. The biggest industry is probably the healthcare industry. We’ve seen many cases where doctors, hospitals, or other healthcare providers bill the federal government through Medicare or Medicaid for procedures that they never actually did or treatments that may not be medically necessary for the patient. That’s a potential False Claims Act case, and it’s one where a whistleblower can step up, report the fraud, and earn a reward.But, the healthcare industry fraud is not just limited to doctors and hospitals. We’ve seen a lot of cases recently involving drug companies. Drug companies have a practice sometimes of giving kickbacks to physicians by giving them, you know, not just cash, but consideration for special benefits, lavish trips, dinners, speaker fees where they pay them basically to talk to their own office about the drug company’s products. Any of that can be the basis for a False Claims Act case because those prescriptions for that particular drug that may later be written by the doctor are all tainted and potentially fraudulent. We’ve also seen drug companies do what we call, “Off-Label Marketing.” They’ll take a drug that’s been approved by the FDA for one particular use, but then try to convince doctors to prescribe it for some other use that’s not been approved yet. That can also be the basis for a False Claims Act case, and we’ve seen whistleblowers earn substantial rewards in those cases.

But, it’s not just the healthcare industry. We see this type of fraud wherever you have a company that has a financial relationship with the federal government. Defense contractors, that’s another big area of potential fraud. The company may be billing the government for goods and services that they didn’t provide, or for goods and services that are not up to the contractual specifications. There are some cases where a False Claims Act complaint will be appropriate where there are federal grants or loans that are being backed by the government. We see it sometimes in the customs area, where importers will bring in merchandise and change the name of the merchandise, to avoid substantial customs duties or anti-dumping duties. In fact, we had one of those cases just last year, and our client earned a substantial multi-million dollar reward for reporting that company to the federal government.

So, that’s basically the type of whistleblower we’re talking about. Now, how you earn a whistleblower reward can vary depending upon the type of claim that you have, but I’ve learned that there are basically seven steps to a good successful whistleblower case. The first step is that you wanna confirm that there’s actually a false claim. We’ve had many people call us and say, “Look, I’m aware that this doctor or this hospital is billing Blue Cross or Blue Shield for procedures that they didn’t perform.” Well, that’s fraud, but it’s not the type of fraud where you can be a whistleblower and report it to the government and earn a reward. What you have to be looking for is fraud against the federal government. Medicare, Medicaid, any type of federal program, that’s where you see an actual False Claims Act, not against a private company, it has to be against the government.

The second step, if you are a whistleblower, is to try to collect some evidence, if possible. You may still be working for this company, and you may see invoices, or emails, or other documents that help prove the fraud that you’re talking about. Gather that information if you can. And, don’t be too aggressive about it. You don’t wanna go steal documents off your boss’s desk or copy computer information. There may be contractual reasons why you can’t do that, and there are certainly privacy laws that may come into play. But, if things come across your desk in the regular course of business, as part of your normal job responsibility, you may wanna hang onto that because it can be helpful for your lawyer, and ultimately, the government in trying to determine if there’s actually fraud.

Now, the third step is to hire an experienced attorney. Once you realize that you’ve got what you think may be an actual false claim, a company who’s defrauding the federal government, and you have some evidence to support that this is actual fraud, and not just some simple mistake, talk to a lawyer, call several lawyers. There are many firms that deal with whistleblowers, and so you’ll have a wide variety of lawyers to choose from. I would suggest that you look for a couple of things. One, you clearly wanna find a lawyer who’s done this before, who has a track record of success because that’s the type of lawyer that knows how to file the right complaint, that’s the type of lawyer that the government has respect for and will deal with, and that type of lawyer will help you ultimately earn a substantial reward. But, the question sometimes becomes, do I wanna deal with a big firm or do I wanna deal with a smaller firm? In our experience, a smaller firm can be much more effective in these cases because of the speed in which we can operate. You know, a big firm may have many cases, they may not be able to get around your case in time, they may have so many lawyers involved in the project that it goes from one lawyer to another lawyer to another lawyer. All that takes time. And in a whistleblower case, you have to act fast because it’s that first person to file who usually gets the reward.

Now, the fourth step is to file that complaint under seal. So, after there’s been some investigation, you’ve gone to your lawyer, the lawyer’s gonna prepare a detailed complaint alleging specific examples of this fraud before it’s filed in court. The lawyer will also meet with the government to disclose the information before they make this filing. The complaint is very important because it kinda sets the roadmap for the case going forward. And, when I say it’s filed under seal, that basically means that it’s secret. You can’t talk about it, not with your friends, family, and certainly, not at work. It’s under seal, it’s secret to give the government time to investigate the case. It’s gonna be at least 60 days where no one can talk about it, but most of the time, that period is extended for many months, sometimes, many years, while the government investigates the case.

Now, the fifth step is to offer to help the government. While the case remains secret, under seal, the government’s gonna be investigating this company. They’re gonna be trying to interview witnesses, gather documents, whatever they can do to try to prove that there is actually fraud going on. So, if you’re aware of something, you may know who the individuals are, who are involved, you may be able to explain the significance of certain documents, you and your lawyer will reach out to the government, and offer to cooperate whenever you can. Now, you won’t control the investigation, the government will do that, but they may very well need your help, so your lawyer should be frequently in touch with the government, talking about potential interviews, meetings, whatever you and your lawyer can do to help the process alone.

Now, sixth, be patient with this process because it’s gonna take a long time. The bigger the case, usually, the longer it takes. Because, there’s a lot to investigate, lot of documents, especially if you have more than one company, or more than one individual involved, the government’s gonna take its time investigating it. But, that’s usually good because the more time they spend preparing the case, the bigger the settlement, and the larger the financial reward.

And, of course, finally, that’s what you want to do at the end of the day, collect the biggest reward possible. And, a good lawyer can help you do this. Because, the law basically says that you’re entitled to 15 to 30% of whatever the government recovers from the company, but that percentage can vary, and it really depends upon negotiations between your lawyer and the government, and how you handle the case. Did the government intervene, did they take it over and settle it, or did you and your lawyer have to take it into court, and litigate it on your own? That’s a flexible percentage, and a good lawyer will help you get the highest percentage, and earn the biggest reward.

So, those are the seven steps that we found effective in handling a whistleblower claim. If you are in a position where you think you may have evidence that a company is cheating the federal government, healthcare industry, defense industry, any type of industry, give us a call to discuss it. The call is completely free, no charge to you, and it’s also completely confidential. Your employer is not gonna know about it. So, if you think you have this kind if evidence, let’s see if you have a whistleblower claim. Because remember, the reward is great, and that’s certainly one of the benefits of doing this, perhaps the biggest benefit. But, you’re also helping the taxpayers because we’re talking about companies that are cheating the federal government, and if you know about that, you should report it, and if you report it, and go through the process, you’re likely to earn a substantial reward. So, give us a call if we can help.