There is not much in the newspapers and news sites about any individual whistleblower case while they are being handled and usually, there is a good reason. Under most whistleblower laws, at least those for which the whistleblower may receive a reward, it is difficult to conduct the investigation and preparation of a whistleblower case while talking to the press or to the public. The False Claims Act sets the example. It requires filings to be made under seal and by (generally) requires that a whistleblower bring the case on the basis of their own information– information that is not publicly disclosed. Read below to learn more about whistleblowers and the press.
Filing a Case Involving Public Information
There is an argument that it does not make sense that a whistleblower should be precluded from collecting just because they found some information somewhere in public. Nonetheless, that is the standard under the law, to discourage cases filed based on public information. The law does allow someone who is a so-called original source of the information to pursue a False Claims Act case even if some of the allegation(s) are presented in public. However, once the case is filed, it is filed under seal in order to allow the government to investigate the allegations.
Even assuming the allegations are publicly disclosed for some considerable period of time, the whistleblower filing a False Claims Act case cannot comment on the False Claims Act case for fear of, at the very least, losing an opportunity to obtain a reward. As a result, False Claims Act lawyers are not prone to discuss False Claims Act cases during the entire pendency of the government’s investigation. False Claims Act cases that are pursued in full litigation are rare.
Whistleblower Reward Laws
Of course, the False Claims Act is not the only whistleblower reward law. Under the Dodd-Frank Act, there are two agencies that provide important opportunities for whistleblowers–The Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) whistleblower programs. There is also an Internal Revenue Service (IRS) whistleblower law. These laws do not include an independent right of action for the whistleblower to proceed in court as in the False Claims Act. They do allow a whistleblower to present information to these agencies. When the agency makes a collection it an entitle the whistleblower to a reward.
Most unusually, under the SEC and CFTC Whistleblower Programs, it is possible for a whistleblower to provide information to the government in an attempt to collect on an anonymous basis. Obviously, speaking to the press while a case is filed anonymously would tend to undercut the point of that provision. So, under the major whistleblower reward laws, there is often no advantage and there can be great harm in going to the press while the case progresses.
Appropriate Time to Discuss Case with the Press
There may be an appropriate time to discuss the case with the press. Usually, that is upon its resolution. Waiting to do this does run counter to the mindset of most whistleblowers who want to present information to the public that they believe is crucial for people to know. A whistleblower may think that talking publicly about such information is the right thing to do. In most cases, it does not help the case initially to go to the press. This is an aspect of any case, which requires discussion with counsel. Keeping quiet about the case may be a concept that is difficult for whistleblowers to accept.
Call a Lawyer About Whistleblowers and the Press
The government does the job of explaining the facts of the case to the public, the merits of the case, and of the terms of the settlement. All that becomes public information upon a settlement. Sometimes because it is the government presenting information about the case, the role of a whistleblower sometimes becomes a secondary matter.
This is unfortunate because in case after case the key to obtaining information, which will protect the public and which will prevent fraud and fight fraud is the participation of a whistleblower. There really is no substitute for someone with some level of inside information or of information, which the government is not aware of, coming forward and presenting that information in a way that the government can use to further all our interests. Unless whistleblowers get their due when the case is presented, it is hard for the public to appreciate that link.
So going to the press with a whistleblower case is a complicated matter. Going to the press without knowing exactly what their rights are, exactly what the facts are, can be especially dangerous. The press generally acts responsibly, but they are not lawyers for the whistleblower. It is a consideration to raise when considering engaging in whistleblower activity.
On the other hand, once a case is successful, whistleblowers and their counsel should go to the press. We owe it to future whistleblowers to remind the public that without whistleblowers almost no fraud would be caught. Call today to learn more about whistleblowers and the press.