GUIDELINES FOR SUCCESSFUL WHISTLEBLOWING

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…a few simple principles which all whistleblowers should follow.

(1)  CONSULT A LAWYER:  Start by calling a lawyer with expertise in Qui Tam actions.  There is no charge for the short phone consultation with one of the lawyers at Rawls, Dickinson & Scheer to determine if you may have a valid complaint.  If we think there is some merit to the claim, we will set up a meeting at no charge to explore the issue with you face to face.  If you choose to go forward and stop the fraud, we will create and implement a plan to maximize your chance of success and minimize your risk of personal or professional harm.  It is critical that you begin by speaking with a lawyer first.  Even if you want to try to stop the fraud from within the company, those efforts need to be carefully documented in the event that you later take formal action under the False Claims Act (“FCA”).  The company may try to punish you if this private campaign fails to correct the illegal conduct.  If this happens, you need to be prepared to use the anti-retaliation protections of the False Claims Act (the “FCA”).  The fees (if any) for the assistance with these early stages will be moderate. 

(2)  DEVELOP A PLAN:  From the first moment that you decide you might want to blow the whistle on someone who is defrauding the Government, you should create a plan with your lawyer.  The first step will often be to work from within the company to eliminate the problem.  Even before doing this, there are steps you must take to protect yourself should the effort backfire.  If the decision is made to file a formal complaint outside the company, there are several steps which you and your lawyer must take before initiating the claim under the FCA.  The plan must have options built in so that you maintain the upper hand no matter what the wrong-doer does.

(3)  MAINTAIN ABSOLUTE SILENCE:  There are several reasons not to speak with anyone about your decision and your activities as a whistleblower.  The most important is that public disclosure of the frauds prior to filing a claim under the FCA will likely disqualify you from any recovery.  It also goes without saying that your professional life may be disrupted if news of you blowing the whistle makes it back to the wrongdoer.  Though you may later make discreet contact with certain carefully selected witnesses, you should only do so after consulting your lawyer.

(4)  STAY ON THE JOB:  Your ability to correct the wrong and be rewarded for your efforts depends largely on your value as a witness.  By keeping your position within the company (or whatever circumstances exposed the fraud to you), you will maximize your ability to gather evidence and assist the Government.  Continue to be a model employee.  Any blemishes on your employment record during the time before filing a claim under the FCA may weaken your position if the company retaliates against you for blowing the whistle.

(5)  PROTECT THE PUBLIC:  If the fraud is causing direct harm to any individual, get a lawyer immediately and work with them to quickly put an end to the practice.  An example of this might be a doctor who is performing a surgical procedure which falls dangerously short of the standard of care, but is billing Medicare as though he were providing the appropriate service.  In most cases, your lawyer will still be able to protect you and preserve your claim even though the case could not be fully developed before making the report to the Government.

(6)  BE REASONABLE:  The best whistleblowers are those who are motivated by a desire to stop someone from stealing from the taxpayers.  There is nothing wrong with wanting to be rewarded for the risks you take in doing this, but if you are solely motivated by cash you will be less credible and ultimately less successful.

(7)  KEEP RECORDS:  You will want to keep records of all of your efforts to correct the fraud.  This will help to protect you from false allegations that you were acting to damage your employer’s business or trying to steal trade secrets for your own personal gain.  Witnesses such as your spouse or your lawyer who can attest that your actions were motivated by a desire to stop the thefts will help deflect a campaign to discredit you later on.

(8)  COLLECT EVIDENCE:  Before drawing any attention to yourself, gather any evidence which will support your claim that the company is defrauding the Government.  If you are not an employee but your association with them puts you in a position to acquire such records, do so.  Work with your lawyer to ensure that you are getting all the relevant information and that the manner in which you go about it is legal. 

(9)  PREPARE FOR THE LONG HAUL:  Though blowing the whistle can be personally and financially rewarding, you should be prepared for a lengthy process.  Some FCA cases resolve in only a matter of months, but many go on for two or more years.  There will be phases during which your personal investment in time will be substantial.  There will also be stretches where your lawyer will be carrying the load and you will be less directly involved.  Your lawyer will be able to give you more guidance on how complex your action may be and will have some rough estimates of how long it will take.

(10)  THERE ARE NO GUARANTEES:  Like any civil litigation, no one can guarantee that you will win the case or that you will receive any money.  Since your lawyer will not get paid unless you win, their willingness to take the case may be your best indicator of the quality of your case.  Choose experienced and aggressive counsel and you will maximize your chances of success.