Filing a whistleblower case can be a long process. The whistleblower has to talk to the lawyer and provide whatever evidence the whistleblower has and the lawyer has to work with the whistleblower to try and put the case together in a form that will be acceptable to court and to the government. Usually, it involves filing some form of a disclosure statement with the government prior to filing the complaint so that the government is on notice as to who the original source of that information would be and also because the statute requires the plaintiff to provide what is called substantially all the evidence that they have in the case. In addition, the formal complaint has to be filed in court under seal. That is a False Claims Act case.
Now, there are whistleblower offices where the procedure is a little different. In the SEC Whistleblower Office, there is a Form TCR (PDF) that has to be filled out and someone can add supplement information to that. It can depend on what type of fraud they are alleging. Generally under the False Claims Act, the complaint in court and the disclosure statements have to be filed.
Role of a Lawyer
Generally, someone would like to file a case and have the government turn around in 2 weeks and tell them that everything is great and they are going to intervene. Usually, what happens is that the government comes back and interviews an attorney’s client and the attorney goes with their client to the interview and a lot of the time, more allegations come up and they may want to amend the complaint. They may want to add to the complaint. They may want to provide additional analysis about the case to the government. The government may come back with questions that someone had not anticipated based on their investigation and ask them to analyze either the law or the facts or see if there is some additional information they can provide to help them go forward with the case. There can be a long period of feedback between trying to help the government as they conduct their investigation. If someone has any more information or a law to support their case and they can work with them to try and provide them with the tools they need to pursue the case.
Role of a Whistleblower
For a little while, the whistleblower waits and has to be patient, and then at some point relatively early the whistleblower is likely to be called in by the government and interviewed. It is not a formal interview in the sense of somebody is swearing them in or, but it is serious. There are no rules of evidence that apply to the questioning in the interview per se. It is not that kind of structure thing, but of course, it is a serious interview in which the government is going to assess the evidence in the case and maybe the whistleblower too. So, that is a pretty big event for the whistleblower. Then it is a matter of waiting and seeing if the government needs any more information or more analysis from the whistleblower. Often they do. Often, whistleblowers are called upon to provide more information or more analysis of whatever information they have previously presented.
They should be prepared for the fact that the government is going to want to know about them a little bit. The government is going to want to know how they came across the information. They generally do want a resume and know their background and the credibility of their statements. They should be prepared. It does not always get contentious, but they should be prepared to say how they came across the information and be able to say what their relationship was to the information and maybe a little bit of their own work history as well are things that they have to be prepared for the government to ask.
Filing More than One Kind of Case
Someone can file more than one kind of whistleblower case, if there are grounds to do so. It has certainly has happened that a good False Claims Act case may involve facts that relate to more than one agency – for example, both Securities and Exchange Commission fraud and an IRS violation. These agencies have their own whistleblower reward programs, and it is possible to file more than one type of whistleblower reward action. This means one can file an IRS whistleblower case, but the False Claims Act itself does not allow for any federal tax claims to be instituted as part of a False Claims Act case.