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Factors in Successful Whistleblower Cases

Whistleblower attorneys and government attorneys look at certain key factors in deciding whether matters have the potential to become successful whistleblower cases. We first consider liability — whether the allegations amount to illegal conduct. We then evaluate theSuccessful Whistleblower Case Checklist strength of the evidence of fraud. This involves analyzing what the whistleblower knows of the wrongdoing and identifying supporting documents and witnesses. Another important factor is the size of any potential recovery to the government.

Here’s a checklist of factors to consider when deciding 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 those states, you may have a claim under these laws.

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

Whether a 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?

Successful whistleblower cases require strong evidence. Some of the strongest evidence often comes from a company’s own documents. In general, the law allows a whistleblower employee to take company documents showing the fraud to give to the authorities. You should limit such evidence, however, to only those documents you have access to in the ordinary course of your employment. Documentation is important but not absolutely required in all cases. Similarly, it is helpful if you know of others, such as former employees, who can back up your allegations. You should consult with an attorney 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, most successful whistleblower cases involve fairly significant amounts of money. The amount of potential damages 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, can offset a relatively “small dollar” case.

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 or service member, or to the broader public, such as a defective road or bridge.

Fraud can impact patient safety and care in numerous ways, such as: providing inadequate or worthless services, ordering unnecessary testing or procedures, promoting prescription drugs for uses that have not received FDA approval and have not been shown to be safe or effective, or neglecting nursing home patients.

Is the fraud intentional or the result of negligence?

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

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. Companies sometimes expect or require employees to participate in fraud as part of their employment. Some potential whistleblowers may not know at first that they are being asked to do something improper.

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 fraud 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. The possibility of receiving an award has motivated many successful whistleblower cases.

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.

Whatever their reason for coming forward, whistleblowers must be prepared for a long and uncertain process. There are risks in becoming a whistleblower and no guarantees of success.

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

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