In part one of this story, Vince McKnight and Ross Brooks, partners in the whistleblower practice at Sanford Heisler, discussed how to determine if an employee is a good candidate for a whistleblower case. In this installment, these attorneys explain how they interface with government regulators, what advice they have for potential whistleblowers and their thoughts on internal reporting programs.
When proceeding with a whistleblower case, attorneys will inevitably encounter federal regulators. In a False Claims Act (FCA) case, the participants can vary slightly, attorneys can expect to meet with US attorneys from the relevant office and Main Justice, as well as representatives from administrative agencies, such as the Center for Medicare and Medicaid when the complaint relates to a healthcare or pharamceuticals.
“Our goal is to maintain contact with prosecutors,” explains Brooks. “If you develop a relationship and rapport with prosecutors, they can invite you in and give you the opportunity to participate in the investigation. It’s a public/private partnership involving substantive discussion with the government with follow-up meetings and continuous discussion and collaboration.”
That relationship is critical, and McKnight points out that the rapport with the government attorneys and agencies varies from case to case. However, the amicability of the relationship does not always yield a better result, because, in the end, the case is based on the facts on the ground. Still, working with a firm that has a combination of resources and experience can be beneficial for the whistleblower, as these firms can assist the government, which is often understaffed.
The key piece of advice that McKnight has for a potential whistleblower is to consult a lawyer early in the process. “There are many pitfalls and legal requirements or potential problems that a whistleblower could encounter,” he explains. “The earlier the whistleblower consults with an experienced lawyer, the better off they’ll be. There are many different levels of a case, and a whistleblower may experience retaliation early on, they may have questions about internal reporting or documents, and the best advice is to talk to someone with experience fast, to start discussing the process and what it entails.”
A second, and equally important piece of advice may go against a whistleblower’s instincts in some cases, but is relatively straight forward. “Whistleblowers should tell lawyers everything. They should not be fearful,” advises Brooks. “We’ll protect them, as will the Department of Justice. Any witness needs to advise counsel of any issue they’ve encountered, any trouble they’ve gotten into, particularly in this context. Whistleblowers are often concerned about being viewed as participating in fraud.” Brooks says his clients should not be concerned about how they’re perceived, because the level of culpability needs to be high in order for the government to be concerned.
These days, many compliance departments in large companies take strides to implement internal reporting programs, that allow workers with and inkling of wrongdoing to report within the organization before they blow the whistle to outside counsel. But McKnight does not see this as a viable option in most cases.
“I’m not a big fan of it,” he says. “It takes a really enlightened company to take an internal report seriously, act on it and clean up a situation without retaliating. Nine times out of 10, internal reporting leads to retaliation of some kind and a cover-up for some period of time. It’s not very helpful. All it does is expose a whistleblower to retaliation and recrimination.”
And retaliation is a real concern, explains Brooks. “It can be a frightening thing to call a company out on fraud. It’s their livelihood, their careers and families at stake. There’s a great fear of retaliation,” he says. “Thankfully, the FCA has anti-retaliation provisions, which protect those who report fraud or information they believe may be fraud.”
The life of a whistleblower is fraught with troubles, but, in the end, knowing that there are experienced attorneys who can help guide you through the thorns can be a relief for anyone who has an inkling of wrongdoing.