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Below The Fold: Why Whistleblowers Don’t Get Enough Good Press

Seeing stories in the news can make it hard to explain to clients that they have to refrain from talking to the press when filing False Claims Act cases. It may seem helpful to have the likes of the New York Times on your side. When a reporter finds out that diet supplements may be labeled fraudulently, that reporter can write about it and then the Attorney General of the State of New York can read about it in the paper. As Anahad O’Connor writes:

“Last month, I received a call from the New York State attorney general’s office. A prosecutor had read my article in the Times and was outraged that companies selling health products engaged in such large-scale fraud. So the attorney general, Eric T. Schneiderman, decided to begin an investigation of his own.”

Of course, I have no problem with government officials reacting to news and doing their jobs. After all, perhaps a major fraud will be thwarted. Unfortunately, people with False Claims Act cases generally cannot follow this route, even though every lawyer who handles these cases would love to be able to call up the paper and get the prosecutors excited.

If the case in the Times includes allegations of fraud against the government, then it is probably too late for almost anyone to file a False Claims action, since we all learned about it in the New York Times. In addition, once a False Claims Act case is filed, lawyers and clients really can’t go to the press, because such cases are filed under the seal of the court. Violate the seal, and the client can lose the right to collect anything, be subject to contempt of court, and incur other judicial sanctions.

Accordingly, most false claims cases are either settled by the government or dismissed, this process is mostly fine. There are serious advantages to the government being able to pursue allegations without having to make their findings public, and clients can also take some time to move on with their life prior to anyone hearing they are involved in litigation.

Unfortunately, this sets up a situation in which the whistleblower’s role is downplayed in the press. It therefore inhibits our ability to promote the law and its whistleblower incentives.

Right now when there is a settlement, the government understandably wants to take credit for any successful result (even then they have to be a little restrained about what they say). Because they are working and potentially speaking on behalf of the U.S. government, the Justice Department officials, even when they comment on a successful case, are not in a position to make the argument as emphatically as we would like for the whistleblower, as their duty is to the government and they do not want to be seen as unprofessional or biased. Since the cases remain under seal for a long time, and since False Claims Act lawyers stay away from the press while that is happening, the whistleblower is usually the third wheel in press reports of large settlements.

What I am worried about is that the whistleblower only seems to garner attention from the press in the context of, “there was a big settlement, and the whistleblower got a big reward for ratting on their employer.” It happens that way because when defense attorneys are finally convinced, or forced, to pay the settlement, they certainly are not going to credit the whistleblower. Indeed, they will pay millions and claim there was no wrongdoing, nothing to see here, etc. Then they get quoted liberally since they paid the settlement.

Furthermore, newspapers and journalists in most cases involving large settlements cite the DOJ press releases on the case. Those releases have to emphasize the government’s role and maintain appropriate decorum.

The press, therefore, rarely highlights or hears about the whistleblower who brought the case. We rarely hear how the whistleblower spent years working with the government, maybe suffered retaliation, maybe lost a career, or maybe risked everything to expose wrongdoing. All the journalists usually print is that the whistleblower got a big reward.

Herbal Supplement Fraud by Major RetailersJust at the time when the public should be most aware of the whistleblowers’ contribution, when in fact there is a successful collection on behalf of all of us, the whistleblower’s voice is the third one heard behind someone from the defense and the somewhat muted response from the government. As such, those of us in the business have a responsibility to demand that when a case is successfully handled even as a settlement, the press credits the whistleblower too.

We constantly have to point out that, absent the whistleblower, there most likely would be no recovery, and that is why there is a reward. Otherwise, we will have to endure the so-called professors of law who are out there denigrating whistleblowers’ contributions in a vacuum of news about how the government got the information in the first place. We’ll read op-eds about how whistleblowers are greedy, absent an understanding of the fact that paying whistleblowers gets results, and of course, as if those who commit the fraud are somehow not greedy.

We can’t go to the press to help our cases initially. But maybe we should be going to the press to help the law.

* Tony Munter mentions False Claims Action in New York, but he is not licensed to practice in the jurisdiction of New York. The information contained in this Website is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this site, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. The content of this Website contains general information and may not reflect current legal developments, verdicts or settlements. The Firm expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this Website.