Challenges in Whistleblower Cases

What are the biggest challenges that you face in a case and how do you overcome those challenges?

Answer: There is no such thing as a simple fraud case. A case that’s big enough to bring to the Department of Justice is going to be complicated in terms of the facts that surround and describe the fraud. You have to be able to demonstrate that there was a false claim presented or a false claim made under the Federal False Claims Act, but learning everything that there is to learn about these cases is hard; they’re not cookie cutter cases. If 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.

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, likes the fact that it takes a long time to work through the process. That is a challenge psychologically and it can be a challenge financially. Dealing with your distressed clients is hard and one more thing is hard: False Claims Act cases are filed under seal. That’s true for the Federal False Claims Act and the State False Claims Acts. The whistleblower laws are generally confidential with the agencies, such as the Securities and Exchange Commission, the IRS, and the Commodity Futures Trading Commission. It’s for whistleblowers and it’s very hard to keep quiet outside of the confines of discussing the case with the government. Imagine you lived with fraud for five or six years, and then coming forward to the government with the fact. You tell the government about it, and now the case is under seal and you have to not talk about it. I think the seal is the best thing for clients, it allows the government to really investigate these cases. I’m in favor of the seal as an attorney, but as for clients, living with that can be a challenge.

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