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Checklist: Do I Have a Good Case?

Factors that we — and the government — evaluate in deciding whether to devote resources to a case are similar. We first consider liability — whether the allegations amount to illegal conduct. We then evaluate the strength of the evidence that fraud has occurred, which requires analyzing what the whistleblower knows of the fraud and identifying supporting documents and witnesses. Another important factor is the size of any potential recovery to the government.

The following is a basic list of things to consider when making a decision whether to come forward as a whistleblower.

Does the fraud involve a government-funded or government-regulated program?

Examples of government-funded programs include, but are not limited to: health care programs (e.g., Medicare, Medicaid); national security and defense; mortgage and banking; transportation and public construction projects; education; and, grants sponsored or supported by government funds.

Examples of government-regulated programs include securities laws, tax laws, commodities and futures trading laws, banking and mortgage industry laws, and customs duties and tariffs.

Note: The states of Illinois and California have whistleblower laws addressing fraud committed against private health care insurers. If the fraud occurred in Illinois and/or California or affects citizens in these states, you may have a claim under these laws.

Do you have personal and non-public information about the fraud?

Whether the whistleblower has personal and “non-public” information about the fraud is a complex legal and factual issue. At the simplest level, it means that you did not discover the fraud by reading about it in the newspaper or other public source but rather from your own personal observation or experience, such as your employment.

Do you have any documentation of the fraud or know of others who could corroborate your allegations?

Documentation of the fraud should consist of only those documents you have legal access to and access to in the ordinary course of your employment. Documentation is desirable, but not absolutely required in all cases. Similarly, it is helpful if you know of others, such as former employees, who can corroborate your allegations. Again, you should consult with an attorney on this issue before taking any action with respect to documents or witnesses.

Does the fraud involve a substantial amount of money?

While not a prerequisite to a claim, the amount of damages involved will be a factor in assessing (i) whether it makes sense to pursue a claim and (ii) whether the government will be interested in pursuing your case. Sometimes other factors, such as public safety and the potential for harm to individuals, are important factors that offset the “small dollar” aspect of the claim.

Does the fraud negatively impact public safety or patient care?

While again not a prerequisite to a claim (and the majority of cases do not involve this), safety and protection from harm are primary concerns of the government prosecutors who will be reviewing your case. This concern comes in many different forms, for example, it could be potential harm to a patient, service member, or to the broader public, such as a defective road or bridge.

There are many ways that fraud negatively impacts patient safety and care, including but not limited to: the provision of inadequate or worthless services, unnecessary testing or procedures, the promotion of prescription drugs for uses that have not received FDA approval and have not been shown to be safe or effective, and nursing home neglect.

Is the fraud intentional or the result of negligence?

Gross negligence, reckless disregard, or deliberate ignorance can sometimes serve as the basis of a claim, but intentional fraud and misconduct make the most compelling cases. Simple negligence is likely insufficient.

Did you initiate or participate in the fraud?

Whistleblowers who file a claim even though they planned and initiated the fraud may be excluded from receiving any share of the government’s recovery. You may also find yourself the target of a government investigation.

“Initiation” of the fraud (i.e., planning and devising it) is quite different from “participation” in the fraud. Many potential whistleblowers are expected or required, as a condition or part of their employment, to participate in the fraudulent conduct. Sometimes, the potential whistleblower does not even know they are being asked to do something that constitutes fraud, or at least are not aware of this initially.

Does the defendant have sufficient assets and ability to pay?

While fraud is often a profitable business and most defendants do have sufficient assets, if the fraud is small in scale or the defendant is in poor financial condition, it may not be worthwhile to pursue a claim as a whistleblower.

Do you have any reason to believe there is already a government investigation underway?

A government investigation may signal that another whistleblower has already reported the allegations to the government or that the allegations are in the public domain. While none of these would necessarily bar your claim, it is important to consider this factor.

Why are you coming forward?

Whistleblowers come to us for a variety of reasons. Most have learned of or even been involved in illegal conduct in their jobs and want to do the right thing. By coming forward, they can expose wrongdoing, set the record straight, and obtain legal advice if they have knowledge of the fraud and fear they could face exposure themselves.

Some are motivated solely by the possibility of a financial award. There is nothing wrong with that, so long as the information provided is truthful and can be corroborated. The reason whistleblower laws exist is to encourage and reward private citizens who expose fraud.

Many whistleblowers come to us after they have been fired or otherwise received some adverse employment action. These can be strong cases so long as the employee has clear evidence of fraud and is not simply seeking revenge against the former employer.

Whatever the reason for coming forward, whistleblowers must be prepared for a long and uncertain process when they embark on this journey. There are risks in becoming a whistleblower and no guarantees of success.

If, after reviewing these factors, you believe you may have a case, please contact us for a free, confidential consultation.

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