Many people wonder whether they can remain anonymous while blowing the whistle on fraud. The question of whether an action qualifies as fraudulent often requires an examination of what the government had agreed to with any contractor. The False Claims Act does not operate under common law fraud, but essentially a material misrepresentation is required.
What Constitutes Fraud Against the Government?
So, that misrepresentation should have some connection to the government’s decision to pay. That is is the general rule to follow. If it doesn’t really matter, if nobody really cared, if the government would have paid anyway that makes it a difficult case to bring. If it would affect the government’s decision to pay for a service or good, then it can be the kind of fraud which can be actionable under the law.
In a Medicare/Medicaid context, falsifying who provided the services can create a legal issue, and falsifying the qualifications of people who provided the services might also create an issue. There have been contracting cases which held that not paying a prevailing wage if there’s a contract with the government can create False Claims Act liability under the Davis-Bacon Act.
So, violating a law when it’s a material part of the contract can become an issue of liability for False Claims Act. You see this a lot in healthcare context because there are laws and regulations designed to keep patients safe with regard to pharmaceuticals and with regard to medical devices. There are laws that determine how these drugs are marketed and how they are given FDA approval. If those laws are knowingly violated when the government pays for such health care products, a company can be held liable under the False Claims Act.
Remaining Anonymous as a Whistleblower
It can depend on what kind of allegation you may have to report. It is a lot easier to maintain anonymity in cases reported to the SEC or to the CFTC than many other whistleblower laws.
These laws were enacted as part of the Dodd-Frank legislation and which allow you to sue for securities fraud. An individual can file an action under those laws through a DC attorney and they have even awarded funds to whistleblowers without identifying them publicly. It’s really quite amazing, but they’ve been able to do that and keep the whistleblower anonymous. Even under these programs, however, there have been instances in which the identity of the whistleblower had to be revealed. If the SEC has to pursue a case against a defendant in court on a criminal action for example, and they want to rely on a whistleblower’s testimony they likely will have to reveal that whistleblower because the whistleblower may be entitled to a reward and decision-makers arguably should be able to consider that when considering their testimony. That aside, the SEC has been very very protective of the rights of whistleblowers who choose to be anonymous.