Season 1, Episode 1  (6/9/19)

THE WHIPP
Whistleblower Information & Protection Podcast
Season 1, Episode 1 Transcript (6/9/19)

Welcome to the first podcast of the WHIPP, the whistleblower information and protection podcasts. This
is brought to you by Brown LLC. Brown LLC is a law firm led by me, former FBI Special Agent and Legal
Advisor Jason T. Brown. Our firm handles whistleblower matters all over the country in conjunction with
local counsel and we’re only paid if we win your case. Past results don’t guarantee future success and
nothing said here in should be construed as legal advice that you can rely on. So if you have a question
about your rights as a whistle blower, you should definitely speak with a whistleblower law firm who
offers free consultations like our firm by calling (877) 561-0000. For the first episode of WHIPP, we will
get into the five most commonly asked questions by whistle blowers.
1. Question number one, “How much money is in it for me?”
Well first let’s break down what it means to be a whistle blower. To be a whistle blower. You are
essentially blowing the whistle on illegal conduct within the confines of a company by an individual or
some other entity. For you to succeed in this area of law, generally, it should not just be about the
money, it has to be about a principle. It has to be about doing what’s right, but notwithstanding that at
the end of the day you don’t get apologies from companies. You don’t get them to admit that they’re
wrong. The apology is them paying some degree of money. So what is in it for you? A percentage of
what the government recovers. Most type of whistle blower actions nowadays are thought to be
brought under something called the False Claims Act (FCA). In the false claims act, also known as the
Lincoln Law, when the government is defrauded, generally a Medicare or Medicaid program, the
whistleblower who is unearthing the fraud for the federal government to learn about it is entitled to up
to 25% of what the government recovers.
Generally it will be less than that. 25% 25% is the high end. 20% is the medium ground and generally
between 15 and 20 is where you can expect if the government takes us large role, but that’s not all a
bad thing. There’s a process and a very definitive type of process that’s involved in determining whether
or not cases are viable in the whistleblower world. First of all, a complaint must be filed under seal.
While it’s under seal where the defendant does not know about it, the government has an opportunity
to evaluate your case. In evaluating the case, it can decide whether to intervene, meaning get involved
in the case directly or to pass on the case, not intervene. If it intervenes, generally you will get less
percentage wise, but it could mean more money for you as the whistle blower, also known as a relator.
Why is it more money? Because statistics show that the average value of an intervened case is roughly
$13 million a non-intervened case is $3 million. Now that assumes that the case is viable at all because
most cases flameout along some sort of the way. So basically, you can get paid an awful lot of money for
doing the right thing, although nothing is ever guaranteed.
2. Question number two that whistleblowers ask is, “How long will it take?”
Good things come to those who wait but not to those who wait too late. And whistleblower litigation
can take a long, long, long, long, long, long time. Now if that was a lot of longs and you’re impatient
about what’s coming next, this may not be the right type of case for you to file. Cause for as many longs
as I said, which may have been six or seven, some cases last more than that. In terms of years, why does
it take so long? Well like we just mentioned, the government has an opportunity to investigate the
matter while it’s under seal. And while some terrific things come from these cases based upon the
government investigations, the government is always triaging and what do I mean by that? This is an
important thing for the government to cut down on government fraud and certain things are prioritized.
For example, right now opioid cases and opioid litigation is prioritized. So whistle blowers who know
about pain pills or kickbacks in exchange for a certain, opioid type of medication. Those cases may get
to the top of the pile cases in which there are a harm to patients are going to be prioritized by cases
purely about economic harm, always seem to find their selves in the middle and go to the bottom of the
pile in deference to those other important matters. So while the government’s investigating, it can take
several years. Now hopefully at the end there is a rainbow and there’s a pot of gold in terms of the
government taking its time, meaning that it’s more inclined than not to intervene or take action in the
case. But unfortunately there’s no rule that governs or makes that to be case. So this can take a long
time from our experience. Some of the shortest periods of time have been roughly about a year and
that’s when you have a very clean type of violation, very crisp information from the relater slash whistle
blower and you have a motivated, a AUSA Assistant United States Attorney working the case. So there’s
no guarantee how long a case can potentially take. It could and most likely will take years. If it’s a bigger
case, there’s a possibility for one year on the short end, but don’t count on that at all. I would expect
anywhere between two and three years for most whistleblower litigation’s and that may be on the short
end.
3. Question number three, “Will my identity as a whistle blower be known?”
The answer is most likely yes. At some point under the false claims act though, you have time before the
defendant or the wrongdoer finds out about your identity. The case is filed under seal, which means it’s
confidentially filed without serving the defendant a copy of the complaint. Most litigations upon filing,
there’s a public record and you have to serve the defendant with the copy, not under the false claims
act, the exact opposite. The court seals the docket, so only those in the know can know and see the
docket and you are not supposed to serve the company. This is an important point. If is a lawyer
listening in about commencing the action because if you commenced the action wrong, you may destroy
it right from its inception. The identity of the whistleblower is generally put into the complaint.
From our experience, we generally only take cases in which under the False Claims Act, in which the
person is willing to go forward with their real identity. If the individual cannot commit to putting their
real name to it bad things have happened historically to the different cases. Now, some people have
tried to file these anonymously. They’ve tried to file them through the use of dummy corporations. Both
techniques can be used. We strongly disfavor them at our firm for a variety of reasons, but we’re open
to listening for certain circumstances about the pros and cons and have a discussion about doing that.
To drop a footnote, there are other types of a whistle blower actions such as an sec whistleblower
action where potentially you can be anonymous from start to finish with the use of an attorney. But
under the false claims act, generally after the government is done evaluating the case in determining
whether or not it wants to intervene, at some point the case will become unsealed and your identity will
be known.
4. Question number four and five are somewhat interrelated, four “Will I suffer from retaliation ?”
and five, “How am I protected?”
Well, under the statute there’s a strident mechanism for protecting whistle blowers. Generally it’s called
an H claim for retaliation against a whistle blower, but of course since the matter is under seal, how do
they know that you’re a whistle blower and are you engaged in a protected activity? This gets to be very
complicated fact specific analysis type of inquiry. I strongly suggest that on the front end, before you
take any action, even educating the company regarding its own wrongdoing, you consult with counsel
first. We want to blow the whistle the right way. Often Times, if you’re trying to report in the company’s
internal, reporting mechanisms, well sometimes that’s a one way door to get fired. It shouldn’t be, but it
is. You need to understand what your rights are before you complained to the company and what your
options are, what your parachute is, which may be an old expression, but what your exit strategy is from
the company.
That’s why if you file a case of false claims act under seal, you have time to work through your strategy
about what your exit will or might be. If you want to leave the company and if the company’s engaged in
very, very bad conduct, you might want to start thinking about getting out of there anyway. Why is that?
Because some of this conduct under the false claims is not just civil penalties but could be criminal and
you certainly don’t want to be wrapped up in something along those lines. So once your identity is
disclosed to the defendant, technically under the law, they may not retaliate against you. Functionally,
they might. It may happen for a variety of reasons. They will want you out the door. They may pay you
handsomely to get out the door or they may find some sort of pretext to fire you. You need to go over
this, you need to go over this with the attorney and you need to have a candid conversation about this.
Those were the top five questions asked by whistle blowers, but ironically one of the most important
questions is not often asked. People assume and the question is, “Do I qualify as a whistleblower?” That
question will be answered in our next exciting episode, this was our first episode of WHIPP, the
Whistleblower Information and Protection Podcast. We look forward to receiving your feedback, your
questions or your comments. Please. If you’re a potential whistleblower, do not leave any of those
things public contact us directly. Blowing the whistle is a very serious matter and if you’re thinking of
blowing the whistle, you should consult with a whistleblower law firm that focuses on this particular
area of law. Our firm would be happy to speak with you. We do offer free consultations, (877) 561-0000
but even if you don’t consult with our firm, look around and consult with a firm that really has a focus of
its practice on whistle blower litigation. Thank you and have a great day.

 


THE WHIPP: Whistleblower Information & Protection Podcast