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What makes a good False Claims Act whistleblower?

What Makes a Good False Claims Act Whistleblower?

The False Claims Act (FCA) is a powerful tool for fighting fraud against the government. This law allows private citizens, known as “whistleblowers,” to file lawsuits on behalf of the government against companies or individuals that are defrauding government programs. If the whistleblower’s lawsuit is successful, they can receive a substantial financial reward.But not just anyone can be a successful FCA whistleblower. It takes a specific set of skills, knowledge and perseverance to bring an FCA case to a successful conclusion. Here are some of the key qualities that make a good FCA whistleblower:

Direct Knowledge of the Fraud

The best FCA whistleblowers have first-hand, direct knowledge of the fraud they are reporting. Under the law, whistleblowers must have “original source” information about the false claims to bring a qui tam lawsuit (where the whistleblower sues on behalf of the government). While second-hand or hearsay knowledge might provide a useful tip, direct knowledge gives the whistleblower credibility and allows them to provide detailed, specific information about the fraud scheme.As an employee, you may witness fraudulent billing practices or off-label marketing. As a vendor or contractor, you may be asked to participate in a kickback scheme. This direct, insider knowledge makes you an invaluable resource in an FCA investigation.

Documentary Evidence

Documentation is key for any FCA case. Good whistleblowers can back up their allegations with documents, emails, audio recordings and other tangible evidence. The ability to obtain this evidence while maintaining confidentiality is crucial.Documents that link executives to illegal practices, internal reports showing fraudulent results, and communications directing employees to break the law are invaluable. Audio or video recordings of illegal practices can also make a huge impact. This evidence helps prove the fraudulent activity and strengthens the whistleblower’s credibility.

Understanding the Relevant Law

The FCA is a complex law covering a wide range of industries and conduct. A strong whistleblower will understand the specific regulations and rules that were violated. This allows them to identify exactly which of the defendant’s claims were fraudulent under the law.For example, knowledge that a certain upcoding practice is illegal under Medicare rules would be essential to identify false claims submitted to Medicare. Without understanding the applicable law and regulations, the whistleblower can’t effectively identify the false claims at the heart of an FCA case.

Willingness to Come Forward

Blowing the whistle is not for the faint of heart. It requires the courage to risk one’s career and endure emotional stress. Many potential whistleblowers shy away from reporting fraud because they fear retaliation or damage to their reputations. A reluctance to “get involved” prevents much illegal activity from coming to light.The best FCA whistleblowers are willing to take personal and professional risks to do the right thing. They understand that exposing the fraud is more important than their own self-interest. This selflessness and moral courage drives them to come forward despite the challenges.

Persistence

Bringing an FCA case to successful completion requires tremendous persistence. Investigations typically take years before reaching settlements or judgments. The process is filled with document review, interviews, negotiations and more. Throughout this lengthy process, the whistleblower must be focused and unrelenting in pushing the case forward.They cannot become discouraged by delays or stonewalling. Persistence and determination, more than any other traits, are vital for seeing an FCA case through to the end. The whistleblower must be in it for the long haul.

Working Well With Lawyers

Under the FCA, whistleblowers must be represented by specialized qui tam attorneys. The whistleblower and their attorneys must collaborate closely to build the strongest case possible. This relationship requires mutual trust, respect and constant communication.The whistleblower must take direction from their attorneys regarding case strategy and follow protocols to keep the case confidential during investigation. A combative relationship between whistleblower and attorney can undermine the case. The whistleblower must work constructively with counsel at each stage of the lengthy process.

High Credibility

The whistleblower’s credibility will be attacked throughout the case. Their background, work history, and motivations for coming forward will be scrutinized. A whistleblower with “baggage” or questionable motives is vulnerable to having their credibility undermined.The best whistleblowers have backgrounds that withstand scrutiny. They have solid work histories with positive performance reviews. Their decision to blow the whistle is motivated by conscience rather than money or revenge. A pristine reputation makes the whistleblower a strong witness and puts pressure on the defendant to settle promptly.

Organization and Attention to Detail

FCA cases invariably involve an overwhelming amount of documents and other evidence. The whistleblower must demonstrate strict organization and attention to detail to keep the facts straight. Being able to recall specific documents or conversations that prove illegal practices is crucial.Disorganized whistleblowers who can’t keep the facts of the case organized undermine their own credibility. Meticulous record-keeping and recall of details are essential for navigating the complex process successfully.

Emotional Resilience

Blowing the whistle can be an emotional rollercoaster. The whistleblower may face anger or threats from former colleagues. They may feel isolated being unable to discuss their situation with anyone. Stress and anxiety are common during the years-long process.The ability to maintain composure under pressure is vital. An emotionally fragile whistleblower may crumble under the strain and abandon the case. Emotional resilience helps the whistleblower persevere through the difficult times before reaching the final resolution.

Financial Stability

Many whistleblowers lose their jobs or struggle to find new employment as a result of coming forward. Blacklisting and retaliation are common, despite anti-retaliation laws. Having financial reserves enables whistleblowers to support themselves and their families during periods of unemployment.Whistleblowers without adequate savings may be forced to settle quickly for a smaller reward or drop the case entirely. Having financial stability provides protection and flexibility to pursue maximum recovery in an FCA case.

Low Expectations for Reward

The potential for a large financial reward should never be the primary motivation for filing an FCA case. Rewards are never guaranteed. The whistleblower needs to be driven by a sense of justice rather than anticipation of a payout.Whistleblowers focused on reward money may be tempted to settle prematurely and miss out on maximum recovery. They may become bitter if a reward is denied. A sense of public duty, rather than a chance for riches, leads to better case outcomes.

Willingness to Testify

At some point during the FCA process, the whistleblower will likely have to testify under oath. They may be deposed during investigation or take the stand during trial. Testifying requires recalling precise details and maintaining composure under cross-examination.Fear of testifying should not dissuade whistleblowers from coming forward. However, they need to be willing to recount their experiences publicly and back up their allegations. The ability to testify convincingly is key to the success of any FCA case.

Low-Profile Personality

The FCA prohibits whistleblowers from publicizing their allegations or lawsuit. Until the case is unsealed, the whistleblower cannot discuss it with anyone except their attorneys and the government. This confidentiality maintains the integrity of the investigation.Whistleblowers who crave publicity or attention will not fare well. The best whistleblowers maintain a low profile and let their attorneys do the talking. They shun the spotlight both during the case and after successful resolution.Blowing the whistle under the FCA is an arduous, complex process that requires certain personality traits and abilities. While anyone can report fraud, being a successful whistleblower who recovers substantial damages for taxpayers takes a special combination of persistence, courage and integrity. These qualities make all the difference between a dead-end tip and a major FCA success.