What are the challenges of fraud and whistleblower cases?
Whistleblower and False Claims Act attorney Tony Munter explains the primary challenges of whistleblower cases. From filing a Qui Tam case to litigating the claim in court, from protecting a whistleblower’s rights to negotiating a reward settlement, the parameters of a fraud claim are rarely straightforward. On this page, Tony lays out some of the problems that can stand in the way of a successful fraud case. The segments below are transcribed quotes taken from an interview with Tony Munter.
There’s no such thing as a simple fraud case. One of the many problems a whistleblower and his or her attorney face when dealing with a fraud claim, is the reality that a case that’s big enough to involve The Department of Justice is going involve lots and lots of complicated circumstances, or additional facts. When you’re talking about federal False Claims Act cases, there are going to be lots of additional facts that surround the central case of fraud.
First of all, you have to be able to demonstrate that there the specific case of alleged fraud you’re dealing with is applicable to the Federal False Claims Act. Secondly, you have to go about learning everything that there is to learn about the case. They’re not cookie cutter cases. One case shows up today it isn’t going to be exactly like the case you had last Tuesday; or even the same industry, so that can make it hard. Factually, they are very dense and getting your head around every aspect of it is both the fun and the challenge. The day-to-day work of facilitating clients is great, but at some point you also have to block out significant portions of context and focus on the case to understand what it is. Those are challenges.
One of the other challenges is that the process takes time, nobody likes that. I don’t think anybody involved in False Claims Act work from the Department of Justice to the attorneys to the whistleblowers is happy about the fact that the process takes a long time, and that’s not just a logistical or financial challenge, but also a psychological one. We often deal with clients who are in distress and looking for immediate justice, and obviously that’s very hard.
People hear about the large rewards in these cases, and they can be large, but do not understand the sacrifice whistleblowers make. We are constantly having to remind everyone that being a whistleblower is hard and that whistleblowers earn the rewards they get. I think people also under estimate how hard it is just to abide by the rules of these cases. False Claims Act cases are filed under seal. That’s true for the Federal False Claims Act and the various state laws.
The whistleblower laws are generally confidential with the agencies such as the Security Exchange Commission and the IRS and the commodity features trading commission. That confidentiality can be very valuable to whistleblowers who do not necessarily want the whole world to know what is happening. On the other hand it can be difficult to live with that secret.
Imagine you lived with a terrible fraud for five or six years now, coming forward to the government with the fact it’s fascinating to you, it’s been your whole life. You tell the government about it and now the case is under seal and you cannot talk about it. I think the seal is the best thing for clients, it’s the best thing to pursue these cases, it allows the government to really investigate these cases. I’m totally in favor of the seal, but I know living with the secret can be a challenge for clients. They do it though, because once they see that there really is a serious attempt to investigate the case, whistleblowers can take some measure of satisfaction.