Investigating a Whistleblower Case

When it comes to filing a whistleblower case, the whistleblower has one advantage over everybody else in the room: they usually know more about the case and more about the facts than anyone else. Sometimes, though, it can be hard to keep all the facts in order, and it can be difficult to know which facts pertain to which illegal activities. Still, the depth of knowledge the whistleblower will have about the facts of the case means that the whistleblower usually is able to conduct such an interview and explain the seriousness of the case. 

By working with a diligent whistleblower lawyer who has experience investigating a whistleblower case, you may be better equipped to convince the government to pursue their case. If you find yourself wondering what happens after filing a whistleblower case, you could take confidence that your DC whistleblower attorney would have an answer. 

Corroborating Evidence

What happens first after filing a whistleblower case is typically a meeting with the government. During that meeting, the government may ask what other sources of information may be available to corroborate the allegations in question. Whistleblowers should consider if they know of other employees—or most especially former employees—of the defendant who can corroborate their case. They may be asked if they know anything about how the defendants store data. They may be asked about their background and need to review their resume.

The vast majority of the time, the allegations involved in the case will be thoroughly vetted in the initial interview. Depending on the circumstances, this may or may not be the last time the plaintiff-relator gets to see the government officials working on the case. However, it’s difficult to tell from the meeting whether the case will be successful.  The meeting tends to be the starting point for the government’s formal investigation. As such, the government officials charged with reviewing the case are not in a position to know everything about the case at that time.  

The Government’s Decision to Intervene

The final decision to intervene in a case or not is made by a combination of officials of the United States Department of Justice. Usually, the Assistant U.S. Attorney assigned to the case and the Department of Justice lawyer will make a decision after they consult with an investigator and review all the evidence they have compiled in the whistleblower case.

They have a chain of command and report up through the Civil Frauds Division of the Department of Justice. So, it is hard to say when any one individual decides. It is a large government agency, and many people will be involved in such a decision.

The people that you can impress are the people you will meet when they interview you about your case, unless you are filing a completely frivolous action, or unless your action is rejected on some technical ground—for example, every allegation in your Complaint is based entirely on a news story you neglected to mention and you had absolutely no knowledge about the case until you did. Unless there is something unusual like that, you are likely to get an opportunity to discuss the issues with the officials of the government.

Meeting with the Government

Make no mistake about the informal nature of this meeting. It is extremely serious, even if there may not even be anyone recording what you say. The lawyers and whistleblower investigators you meet will want to know everything you know about the False Claims case. They will want to know who else they can talk to who can corroborate your allegations. They will want to know where they can obtain documents. They will, of course, judge your credibility too. All this goes into a meeting.

So what can you do to help these kinds of investigations proceed smoothly? You can work with your whistleblower lawyer to prepare the best complaint possible, and you can be as knowledgeable about the facts and as truthful and co-operative as possible. You want to make it possible for the Justice Department to pursue your case. If they do, you have a greater chance of success.

Duration of Investigating

The time it takes to fully investigate claims can be frustrating for whistleblowers and their attorneys alike. Waiting is not a lot of fun, and most people are sympathetic to this plight, even government officials who have been conducting whistleblower investigations for years. There is no particularly great answer for dealing with it. Nonetheless it is what happens after filing a whistleblower case. The government has to do its job and investigate the allegations, and as long as the government is investigating the allegations, it is usually in the best interest of the whistleblower to simply let them do so.

Often during the course of these investigations, the government will come back for more information, for more clarification, and for help with legal issues from the whistleblower and the whistleblower’s attorney. This is always exciting because it indicates both some progress in the case and interest by the government in the allegations. If nothing else, it provides the whistleblower and the attorney an opportunity to help with the investigation.   

Investigations Under Seal

There are limitations to the help a whistleblower and their lawyer are expected to give the government with their investigations. Since the investigation belongs to the government while it is under seal, whistleblowers are not free to contact witnesses and discuss the matter, or to attempt to get more information without strict approval from the government. Any such activity could be considered interference with or somehow detrimental to the investigation. However, the fact that the False Claims Act has been spectacularly successful in recovering money for fraud committed against the government and is, in fact, the most powerful whistleblower law does not change how frustrating it can be for whistleblowers to have to sit on the sideline and wait for the government to take action.

What Should Whistleblower Lawyers Understand About Investigating Cases?

It is very rarely the case where a whistleblower lawyer knows absolutely everything. They may know three-quarters of everything and they may know nine-tenths of everything, but big fraudulent activity usually involves many people. There can be a lot of moving parts to that. So, I think for lawyers, you have to remember that. Even when your client does know everything it can take a while to have them tell the whole story.

Lawyers have to keep asking. Your client will say one thing and you have to follow it up with other things because it may trigger, more memories from the client. The client may know more things than they think to tell the lawyer in the first meeting. The more that you can find out before you file the case, usually the better for the case. You could say it’s a constant process to learn as much as you possibly can about the client, the client’s case, maybe the industry that the client is coming from. There’s a lot to learn and you just have to keep asking.

What Should Whistleblowers Expect from Fraud Investigations?

From the plaintiff’s side, they should be prepared to come to a meeting with the government knowing what’s in their complaint, and knowing the facts of their case the best they can. If they can provide the government with any information about witnesses who might corroborate their allegation, the government is likely to be very interested in that.

After this, I’m afraid the plaintiff has to prepare to wait a bit because it’s going to take the government some time to investigate any case and corroborate the evidence. Nobody in the government or outside the government is entirely happy with how long this can take, but that’s just the reality of investigating a whistleblower case. It can take some time. So, those are the things a plaintiff-relator in a False Claims Act case should be prepared to do in addition to maintaining the seal of the court, which means once you filed the case, you have to be prepared limit any discussion and to talk only to your lawyer about it and nobody else. That can be a difficult thing to do for some whistleblowers, for whom it’s a very important part of their life and they would like to be able to talk about it. But by and large, I think whistleblowers understand this process is a special one.

How Do You Know When You Have Enough Evidence For The Government?

Most people would answer that by saying if you’ve got a complaint that can survive what’s called Rule 9(b), which requires that you plead fraud with particularity, you almost certainly have enough– you certainly have enough at that point to file. You certainly need a good faith belief that a false claims has been has been committed and that, isn’t as easy as it sounds. Fraud or at least a false claim being presented to the government, can take quite a bit of investigation and discussion with your client to get to the point where you’re comfortable that that has in fact occurred because a lot of things can be wrong at the business.

A lot of things can be done sloppily. There can be negligence. People can make mistakes. None of that necessarily means that somebody submitted a false claim or committed fraud against the government. It can take some time to get to that point and you do absolutely need a good faith belief and some evidence to support it; that that is what happened. If you have all that, you’re probably in pretty good shape.

How Long Does It Usually Take to Get Enough Evidence?

The timeframe of an investigation really varies. Sometimes you have a situation where the client shows up with everything all understood and you can do it very fast. And sometimes, the client may disappear, the client may be abroad, the client may not provide you with the information, or the client– I’ve had a situation unfortunately where a client got sick and there was really nothing anyone could do until the client got better and that caused me quite a bit of time. So, that can certainly vary.

What Do I Have to Pay to Get The Whistleblower Case Done?

Initially, usually nothing.

There are expenses, but usually those expenses are covered by any collection. And they are relatively modest to get the case filed in any event.

So it’s a relatively inexpensive proposition to be a whistleblower bringing a False Claims Act case because almost everybody handles these case on a contingent fee basis, so it’s not like going to an attorney and having to pay for an hourly rate. That tends to make it a much more viable proposition for clients to attempt to pursue this type of case with a good DC whistleblower attorney. For more information on investigating a whistleblower case, schedule a consultation today.