What Whistleblowers Need to Know about Defense Fraud Cases

Tony Munter, a False Claims Act lawyer, answers questions about what whistleblowers should be aware of regarding defense contractor fraud-related False Claims Act cases.

What should a potential whistleblower be aware of with respect to gathering information to pursue a defense contractor fraud claim?

Tony Munter: The area of gathering information is tricky especially in defense where there may be security issues involved so anybody involved in such a case would be well advised to contact an attorney. The defense contractor whistleblower needs to be knowledgeable in their area. They don’t have to be extremely knowledgeable in every aspect of defense contracting, the FAR, or the DFAR, but they have to know the specific thing that is going wrong really well. If there is double billing happening at a particular site, they need to know everything about who double billed and why. If there is a defective part or product being made, they need to be able to say exactly how it is defective and exactly how the records are being faked. They need to know that more than anything else, as well as knowing when the government paid for any of that; that can be very helpful.

What common mistakes do you see clients make in these cases?

Tony Munter: The first mistake that people make is to assume that because they like their work environment and their boss, and they were hired there, that the people they’re working with have their interests at heart. That can be very problematic. I also see a lot of people who want to go to the press right away. I have a great deal of respect for reporters and the press, but reporters and the press have a job to do, and their job is to get a story. Sometimes that is helpful, but it doesn’t always protect the interests of the client. The client needs to know what their rights are before they act. That is really the number one issue; they should know their rights and then act, versus taking action before they know what their rights are. If someone calls the press before they should, they could disclose facts that make it harder to file a case. The number one mistake that I see clients make is to take action prior to talking to counsel.

How can an individual avoid making these types of mistakes?

Tony Munter: First of all, don’t panic. There is this sense of panic that sets in, but don’t panic. If you have to, talk to more than one attorney. You might think that you have an employment law case and that you have to talk to an employment law attorney, or you might have a whistleblower case and think that you have to talk to a whistleblower attorney. You might have a case involving more than one kind of problem, and the lawyer might have to say, “You need me for this and you need somebody else for that.” Most lawyers will talk, at least initially, without a large cost attached. You can get reasonable advice fairly early in the game.

Can an individual who is not an American citizen bring defense fraud claims under the False Claims Act?

Tony Munter: Yes, at least as the statute is written. It says “a person may,” it doesn’t say “a citizen may.” That makes it pretty clear that it’s a “person”, so I do not believe you have to be a United States citizen to bring a case. You do still have to meet all the other requirements of filing a False Claims Act case. You have to have information that has not been publicly disclosed. You have to be able to show that you are the original source. The statute says a “person,” not a “citizen,” so a “person” is not necessarily a citizen of the United States.

What is the success rate for False Claims Act cases?

Tony Munter: The statistics I’ve seen have estimated that one in five cases gets intervened by the government, and if they get intervened, they are usually successful. It may be a little bit more or less than that, but those are cases that have been brought by an attorney. It doesn’t mean that one in five ideas for cases are intervened, it means one in five cases that an attorney has looked at and decided was worth filing. That doesn’t mean that just because you don’t have a False Claims Act case, you have no case. False Claims Act cases are pretty special. You might have a Securities and Exchange Commission whistleblower case. You might have an ordinary case of wrongful termination and need an employment lawyer. There is a whole range of different cases that don’t necessarily fit into the parameters of a False Claims Act case. Just because you talk to a False Claims Act attorney and it doesn’t work out with that particular attorney, it doesn’t mean you don’t have any kind of an action.