Ten Secrets to a Successful Whistleblower Case
History teaches that the key to a successful whistleblower case is to put together a compelling complaint with strong evidentiary support and significant damages that peaks the Government’s interest and persuades it to bring the case. There are many components to a strong case, and there is no magic formula, but ten secrets to a successful whistleblower case are:
1. Documented evidence of the underlying conduct within the company, including internal memoranda or emails is critical as anecdotal evidence alone is rarely enough to convince the Government to intervene in the case;
2. Information showing that the conduct occurred on a wide-scale, through multiple departments within the company among several employees, helps show that the conduct is significant, and not limited to a few rogue employees;
3. Information demonstrating that the conduct occurred at multiple locations, and was not limited to one facility or region, helps show both a pattern and/or practice of certain behavior on a company-wide scale and could suggest knowledge at higher levels;
4. Information supporting that senior members or officers of the company actively directed the fraudulent conduct, or knew about the conduct and did nothing to prevent it, is critical to show knowledge at the corporate level;
5. Information that internal complaints were made by the whistleblower or any other employee and nothing was done about it, or negative action was taken against the whistleblower in retaliation for blowing the whistle, help to not only prove a retaliation claim, but demonstrates corporate knowledge as well;
6. Budgets and financial data showing the economic impact of the fraud always prove compelling and give the Government information to begin a damages analysis;
7. A list of other sources of information, such as types of documents, internal databases, and document custodians is extremely helpful to the Government as it begins any investigation;
8. A list of potential witness names, contact information, and their potential level of cooperation gives the Government a strong position to start from as they begin interviewing witnesses;
9. Always be sure to narrow down the levels of Government and the particular agencies injured by the underlying conduct as it may be the case that a pervasive fraud occurred but it did not effect the Government and is thus not a violation of the False Claims Act;
10. Last but not least, it is imperative that you choose the right lawyer who not only understands that landscape and potential minefield of bringing a whistleblower case, but also understands the nature of the underlying allegations being made.
Note: Whistleblowers, particularly those actively employed by the company, should always keep in mind that there are proprietary and confidentiality implications to removing evidence and documents supporting their claims, especially when a confidentiality agreement is in place. In some cases, for public policy reasons, the law protects whistleblowers and the Government due to the importance of rooting out fraud, allowing disclosure despite confidentiality. However, it is important to keep in mind that whistleblowers should not actively attempt to remove documents that are outside of their possession and should never remove original documents.