How the Government Chooses Whistleblower Cases

In a whistleblower case, one of the most stressful parts of the case can be waiting to see if the government will intervene and take your case. How long does this take? How do they make a decision? What happens if they take it? What happens if they don’t? Whistleblower attorney Tony Munter answers some of these questions below.

Does The Government Make a Decision Right Away?

The government usually doesn’t tell you right away and they certainly don’t tell you that they made a decision right away. I think they want to hear everything that the whistleblower has to say, then they want to do their own investigation. After that, the government will confer and make a decision about what they think about the case. It’s a serious decision for the government to intervene in the case because they don’t want to intervene and put themselves in a position where they might lose.

As a result, they take the decision to intervene very, very seriously, and they take their time to make that decision and attempt to get all the relevant evidence that would impact the decision. Overall, there is a great deal of discretion involved in deciding whether or not to take a case.

They don’t have to take or intervene in the case. They can intervene in a case or decline to intervene and sometimes as a whistleblower you may never find out why.

If The Government Decides To Take Action On a Whistleblower Case, What Do They Do?

Well, that’s a good thing. They certainly have tremendous resources to pursue a whistleblower case. They have attorneys who are capable. They have the authority to obtain evidence that would be more difficult for an individual private attorney to obtain.

And obviously, it makes an impression upon the defendants when they realize that the Department of Justice is in the position of confronting them about their actions. In many situations, this leads defendants to attempt to settle the case. If the other side is not amenable to settlement, the government can go through the process of litigation and taking the case all the way to trial. So they have a lot of authority to handle a lot of the aspects of the case.

If The Government Doesn’t Take Action, What Happens After That?

If the government decides not to take any action, the whistleblower lawyer and their client have some very difficult decisions to make, such as whether the client has the right to pursue a case absent the support of the government. The statistics are clear, though, that success in that endeavor is much less than when the government is helping a case.

The attorney may not wish to pursue it with them. It may be a situation where the attorney wants to go forward and the whistleblower has had enough. It’s possible to just dismiss the action, but it’s also possible to go forward.

Everybody has got to sit down at that point to see and figure out why the government declined the case. If you agree with the government’s reason for declining the case, obviously the smart move is not to pursue it.

Most whistleblowers know enough about a case to make it a legitimate case to bring. But there can be factors that the whistleblower isn’t aware of that make sense and upon the government’s investigation make it clear that the case simply wouldn’t work in a False Claims Act context. In this instance, the smart thing to do is to walk away.

It’s obviously going to be a painful decision if one doesn’t necessarily agree with that because the commitment and time and resources and effort to pursue a case out of seal is a major one. But it happens, and clients do purse False Claims Act cases out of seal, and sometimes they prevail. So it’s a difficult decision point for everybody involved.