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Many whistleblowers we work with at the WLC are reporting fraud against their own employer and are also in the process of leaving the company–either voluntarily or due to retaliation. Roughly a quarter of our clients are faced with a particularly stark dilemma: sign a release that waives the right to a whistleblower reward or forfeit a severance payment. Employers regularly make signing such a release a condition of severance even when the payment was promised and counted on by employees. A company aware of its potential liability has an even greater incentive to structure severance payments to buy former employees’ silence. While severance payments are far smaller than the potential False Claims Act (FCA) rewards (which can include damages for retaliatory denial of severance as well as a share of the government’s damages), the promise of immediate financial assistance during a time of transition can be difficult to pass up in favor of the uncertain hope for a share of the government’s recovery after years of investigation or trial.
There is no one right answer to this dilemma, but one imperative is clear: never sign an employment release until you’ve sought legal advice, not just from an employment attorney but also from a specialist alert to the nuances of this area of whistleblower law.
Some whistleblower laws, such as the SEC whistleblower program, specifically forbid waivers of the right to a reward. Any release that requests you do so is not only unenforceable, but constitutes a separate illegal act on the part of the employer. Indeed in January, the SEC reached a $340,000 settlement with asset manager Blackrock, Inc. over charges it improperly included such waivers in the separation agreements for exiting employees. Upfront confidentiality agreements prohibiting communication of wrong-doing to the SEC can also be actionable as “pretaliation.”
Releases of FCA liability are always unenforceable because liability for fraud against the government can only be released by the government, not by a whistleblower or potential whistleblower. However, waivers of a putative relator’s right to collect a future reward have been enforced by some courts, but generally only if the government was already informed of the fraud allegations. Courts enforcing these agreements have reasoned that where the government was so informed, the public policy argument justifying these awards doesn’t apply.
Last year, the Second Circuit Court of Appeals interpreted this narrowed enforcement rule in United States ex rel. Ladas v. Exelis, Inc. , 824 F.3d 16 (2nd Cir. 2016). The court held that a contractor’s vague disclosure to the government regarding a change in its manufacturing process was not sufficient to put the government on notice of its fraud to justify enforcement of a release. The court noted that the contractor downplayed the change as “inconsequential,” didn’t disclose that it had changed the adhesive it was using, and failed to reveal that there was any kind of fraud or fraud allegation. Ladas represents relatively good news for whistleblowers who have already signed a release, as it suggests that employers who haven’t been fully candid with the government may not be able to enforce the agreement even in jurisdictions that would otherwise permit it.
However, for whistleblowers who haven’t signed releases, there’s still a need for caution. Determining which disclosures will be deemed sufficient to justify a release is a highly fact-dependent inquiry and very difficult to predict at the beginning of a case. See, e.g., United States ex rel. Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1170 (10th Cir. 2009) (disclosures of what employer considered “baseless” allegations of fraud deemed sufficient to serve the policy interest in disclosure). Moreover, a potential whistleblower may not know what facts, if any, their employer has disclosed. Furthermore, sometimes a potential relator has already disclosed information to the government through a pre-filing disclosure or tip to the government before filing an FCA complaint in court.
Ultimately whether a release is upheld will depend on a court’s views and biases about the whistleblower and the defendant’s motives. Even in the best of circumstances, predicting these outcomes is nuanced and uncertain. For a potential whistleblower facing the prospect of unemployment, it is not a determination that should be made alone. It requires competent legal advice based on the facts of the case, the precise law of the filing jurisdiction, and the client’s situation.