If you have information about fraud or misconduct within your organization, you might be considering becoming a whistleblower. "Whistleblowing" is a general term that covers a wide range of actions, all of which are related to reporting fraud or unethical behavior. For instance, filing a complaint with the Occupational Safety and Health Administration (OSHA) can be considered whistleblowing, as can reporting a private corporation's tax fraud.
Some whistleblowing actions fall under a government program or law that enables the whistleblower to obtain financial compensation following a successful enforcement action. However, not all allegations of fraud or wrongful behavior will translate into this type of legal action. In order to know whether you have the appropriate allegations and evidence for a legal case under a whistleblower program, it can help to consider the following questions.
Is There an Applicable Whistleblower Law or Program?
Whistleblowing can take on a myriad of different forms. Some types of whistleblowing are subject to federal laws or programs that offer financial rewards for the successful prosecution of a case or the reporting of necessary evidence. The following programs are examples of programs that enable a person to bring a suit or submit formal allegations as a whistleblower with the possibility of a whistleblower reward. All of the programs protect whistleblowers from being retaliated against, although those protections may differ depending on the program. It is almost always best to file a tip or claim under these programs with the help of an experienced attorney.
The False Claims Act
The purpose of the False Claims Act is to help the government recover money it should have never paid, money that it overpaid, or money that was wrongfully withheld from the government. If the wrongful conduct does not involve the federal government, you do not have a claim under the False Claims Act. But if a state or local government are impacted, you may have a claim under a state or local equivalent of the False Claim Act.
If you have information about money being wrongfully taken or withheld from the federal government, you may have a federal False Claims Act Case. If you have such a claim, the act allows you to bring a qui tam lawsuit on the government's behalf. If the government prevails, the whistleblower may receive up to 15 to 30% of the suit's recovery.
As detailed in Choosing A Whistleblower Lawyer, filing a claim under the False Claims Act or state or local equivalents is a multi-step process that includes filing the case under seal, cooperating with the government during its investigation, and litigating against the defendant if the case does not resolve.
The SEC Whistleblower Program
The Securities and Exchange Commission (SEC) Whistleblower program is designed to encourage the submission of timely, specific, and credible information about federal securities laws violations. This type of fraud typically harms private investors, not the federal government. Examples of federal securities laws violations that the SEC is interested in include Ponzi schemes and insider trading. The SEC provides financial rewards of up to 30% of recoveries for the submission of original, high-quality information which leads to a successful SEC enforcement action. Whistleblowers are sometimes interviewed by the SEC and asked to assist in gathering information, but are less involved in the process, and often less informed, than False Claims Act relators are given the FCA's more stringent relator-focused procedures.
The CFTC Whistleblower Program
The Commodity Futures Trading Commission (CFTC) regulates fraud and market manipulation related to the US derivatives market. Examples of the types of Commodity Exchange Act violations the CFTC is interested in include falsification of trade records in interstate commerce and the manipulation of the prices of commodities. The CFTC Whistleblower program, like the SEC Whistleblower program, provides financial rewards of up to 30% of recovered funds for the submission of information which leads to successful enforcement action. Like the SEC whistleblower program, this is a tip-based program.
IRS Whistleblower Program
The IRS' Whistleblower Office accepts information related to tax noncompliance, tax fraud, or violations of other laws which the IRS is tasked with enforcing. Violations of tax law which the IRS might be interested in include offshore tax evasion, money laundering, and mail fraud, among other examples of tax noncompliance. The IRS Whistleblower Office, like the SEC and CFTC programs, offers up to 30% of financial recoveries for whistleblower tips that lead to successful enforcement.
DOJ Corporate Whistleblower Awards Pilot Program
As of August 2024, the Department of Justice (DOJ) operates a program to incentivize whistleblowing on corporate crime not already covered by the FCA, IRS, SEC, or CFTC programs. Examples of fraud or misconduct that might fall under this new whistleblower program include kickbacks to domestic government officials and healthcare fraud not covered under the FCA, including private insurance fraud. If a whistleblower's information leads to successful civil or criminal forfeiture, the DOJ says that it will give a percentage of the funds recovered to said whistleblower. This program is brand new and untested, with the rewards contingent on a number of factors outside of the whistleblower's control.
Other Whistleblower Programs and Laws
The above is not an exhaustive list of whistleblower programs and laws. Submitting an OSHA complaint or another workplace-related complaint is a type of whistleblowing. However, Goldberg Kohn currently only takes whistleblower cases covered by the programs listed above
Do You Have Original Evidence?
Each of the above programs requires the information provided in a whistleblower lawsuit or complaint to be "original information." This concept has slightly different meanings based on the program at issue, but it generally means that you must have learned of the misconduct from your own, personal experience. Additionally, the fraud cannot already be the subject of a government investigation or hearing, or detailed in the media. If you only learned of the fraud by reading about it in the news or seeing it on TV, for example, you would likely not have original information that would entitle you to an award.
There are some exceptions to this rule. For instance, the SEC Whistleblower program allows for whistleblowers to submit information gleaned through "independent analysis" of publicly available information if this analysis contributes insights that are not facially evident in the materials. Another exception exists under the False Claims Act, where a person may be able to pursue an action based on "publicly disclosed information" if they have knowledge that is independent of and materially adds to the publicly disclosures. However, the strongest whistleblower complaints are typically derived from personal information not yet available to the government or public.
Do You Have Persuasive Evidence?
Anyone who has specific knowledge of wrongdoing can be a whistleblower. Many whistleblowers are current or former employees, but this is not a requirement. The most successful whistleblowers can verify the wrongful conduct they report because they either saw it happen or have access to documents that prove it.
Any evidence to support your case should be compelling and demonstrate key facts about the wrongdoing, such as who committed it, when they did so and what exactly they did. Compelling evidence includes eyewitness, first-hand observations and documents such as emails, internal reports, billing records or test results that confirm the facts you are reporting. The stronger your evidence, the more likely you are to have a successful whistleblower case.
How Recent Was the Conduct?
Many of the major whistleblower programs have a statute of limitations, which is a window of time in which you must file a case or submit information. You must file a lawsuit under the False Claims Act within six years of when the wrongful conduct happened or within three years of when the responsible government official gains access to the information, but never more than 10 years after the event.
For the SEC and CFTC whistleblower reward programs, the statute of limitations is set out by the Dodd-Frank Act. You must submit a report within six years after the incident or within three years after you became aware of the incident, but not later than ten years after the incident took place.
The IRS whistleblower program has three possible statutes of limitation, depending on the circumstances of a given case. Generally, the IRS must assess taxes or begin court proceedings "for collection of such tax" on a taxpayer within three years after the return was filed. In cases where a taxpayer substantially understated gross income, the IRS may assess taxes in the six years after the return was filed. Lastly, in cases where there was willful or fraudulent intent on the part of the taxpayer, there is no statute of limitations. You must submit a tip within the applicable limit in order for the IRS to start a case based on your report.
The DOJ pilot program does not currently have a statute of limitations, but the timeliness of a whistleblower's report may affect the amount the whistleblower is awarded upon a successful prosecution. This rule about the timeliness of filing is generally true of all whistleblower programs, so it is best for a whistleblower to file a complaint as soon as is feasible.
Does Another Suit Already Cover These Facts?
Whistleblower programs often have provisions that make it difficult to bring a case if another, similar case is being investigated. These provisions will not always preclude a whistleblower from bringing an action or filing a report. However, it may affect the eventual award which a whistleblower receives upon a successful action.
The determination of whether or not another case is "sufficiently similar" to a new allegation is often a complicated one, and it is best to consult an attorney if you think your case may be similar to an ongoing one to receive individualized assessment.
What Kind of Information Should I Include if I Contact Goldberg Kohn About a Possible Case?
Initially, please simply provide your name and a way to contact you, plus a brief description of why you are contacting us. As we gather more information from you, we will likely need some additional details, such as the following:
- The name, location, and size of the companies or parties involved.
- How you obtained information about the fraud (e.g. were you an employee of the company or did you learn about the fraud in a different way?).
- Summary of what you have observed.
- Dates of occurrence.
- How the conduct you’ve observed is defrauding the government and an estimate of how much money the government was defrauded of
- Whether or not you have documentation.
- If you or anyone else has already filed a complaint concerning the misconduct.
You do not need to have all this information to contact us, certainly not initially. Additionally, don’t worry about explaining every detail of your case. We will guide you through the process of what information we need if we move forward with investigating your matter.
You can call us at 312-284-3258 or contact us online. We are always willing to provide you with a free, confidential consultation to discuss a potential case.
Goldberg Kohn's Experience With Whistleblower Cases
Goldberg Kohn is a Chicago-based law firm with a dedicated whistleblower practice that litigates cases across the United States. Our attorneys are experienced in winning cases under the False Claims Act and other whistleblower programs. Since our landmark $225 million settlement win in United States ex rel. Tyson v. Amerigroup Illinois, Inc., our attorneys have won judgments and settlements in many other high-profile whistleblower lawsuits. Our award-winning firm has up-to-date knowledge of whistleblower laws and extensive court experience handling these cases.
Awards and achievements in our whistleblower law team's track record include: one of the largest verdicts in False Claims Act history, with a total judgment of $334 million; multiple Lawyer of the Year and other excellence awards; and major speaking engagements and articles featured in publications like Law360, Bloomberg Law and the Chicago Tribune.
Contact Goldberg Kohn About Your Case
Even with background information on the various whistleblower programs, it can be difficult to assess whether you might be able to file a case or submit a report. This is why talking to an experienced whistleblower lawyer is the best first step.
The whistleblower attorneys at Goldberg Kohn are highly experienced with cases brought under the False Claims Act and other whistleblower laws. If you require assistance in evaluating your claim, call Goldberg Kohn at 312-284-3258, or contact us online for a free, confidential case review
