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How to maximize a whistleblower case, part 1

Attorneys from the whistleblower practice at Sanford Heisler discuss the ins and outs of whistleblower cases

Just about everyone with a full time job has some sort of beef with his or her company, and some may suspect that there are illegal goings-on at the highest levels of the business. But that doesn’t mean that everyone is a potential whistleblower. Whistleblower cases, whether stemming from financial corruption or false claims, can be tricky, and it takes expertise and resources to parse out and fully pursue the best ones.

One firm that specializes in whistleblower cases is Sanford Heisler LLP. In the past year, the firm has settled three significant qui tam actions against large corporations with assistance from the Department of Justice, and has filed 12 other whistleblower actions throughout the United States.

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Before the growth of its whistleblower practice, the firm had long possessed a reputation for being a labor and employment firm, After working on a number of False Claims Act cases, its whistleblower practice started to grow.

According to partner Ross Brooks, this was a logical step. “The whistleblower practice is a natural extension of our existing practice,” he says. “Often, employees are mistreated in ways that other clients have experienced, and they might be aware of information that could form the basis of a whistleblower claim.”

Soon, Sanford Heisler brought in another firm, McKnight Kennedy LLC, and the expertise of Vince McKnight. 

As the firm’s whistleblower practice grew, so did its reputation. Potential whistleblowers sought out the firm and a number of cases developed out of discussions regarding other employment claims. In most cases, says McKnight, potential whistleblowers are very deliberate. “In my experience,” he explains, “whistleblowers take time and care when selecting an attorney. When they finally contact me, I am surprised at how much they already know. They’ve looked up cases and a firm’s track record.”

Sanford Heisler receives a number of potential whistleblower cases every year and must decide which ones are the strongest. “The first consideration is asking ‘Who is this individual? What type of witness will he make? What are his motivations and the credibility of his claims?” Brooks says. “The hallmark of a strong whistleblower would be someone who is knowledgeable in the subject matter underlying the potential claims, someone who has a level of responsibility and credibility in the company.” 

A strong witness knows that the company is doing something wrong and can come to an attorney with the knowledge of regulations that were violated in the industry or is aware of how company wrongdoing resulted in the violations of government contracts, for example.

The best whistleblowers will have a unique combination of quantity and quality of evidence. “We have to use judgment to determine if the whistleblower is bringing the type and quantity of evidence that will allow us to file a good faith complaint that meets the legal standards, which are quite high,” McKnight explains.

In addition, attorneys must look closely at the motivation of the potential whistleblower. “Ask yourself, ‘Is it a disgruntled employee, angry about mistreatment or retaliation?,’”advises Brooks. The attorneys need to determine if the company has a legitimate grievance against the employee in the event that the employee was terminated. In some cases, the client might want to bring a claim but does not have one. “You can determine if you have a disgruntled employee or one who brought concerns to the attention of management and was retaliated against,” he says.

In the second part of this story, McKnight and Brooks will describe how they work with federal regulators, advice they’d give to potential whistleblowers and the role of internal reporting programs and retaliation protections.

Senior Editor

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Rich Steeves

Richard P. Steeves is Senior Editor of InsideCounsel magazine, where he covers the intellectual property and compliance beats. Rich earned a B.A. in English Literature...

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