Whistleblowing Process

Whistleblowing cases have at least a two-stage process of potential litigation. The investigatory phase is when the government can investigate and work with the whistleblower for more information analysis of information as they investigate. After this investigation, the case moves on to a normal litigation phase.

If you have information about fraudulent activity and are considering blowing the whistle, you should speak with an attorney. An experienced whistleblower lawyer could explain your legal options and guide you through the whistleblowing process. They could be your advocate and protect your interests at every step.

First Steps in the Litigation Process

In order to file a case, a whistleblower will file a disclosure with an appropriate government agency. If it is a federal case, one would file a disclosure with the federal government. If there are state claims, one would file a disclosure with the appropriate state agency as well.

The whistleblower would do this in order to attempt to preserve the status as an original source of the information. Having done that, one files a complaint under seal. It is now possible to file a consolidated action involving federal and state claims. For example, if the whistleblower intends to expose a nationwide scheme of medical fraud, it is possible to file 30 different claims for 30 different jurisdictions in one federal action.

Investigating a Claim

Filing a disclosure or complaint must be done under seal, and the government is supposed to investigate those claims.  They meet with the whistleblower to discuss this at least once. The government’s process of investigating the allegations made by the whistleblower can take quite a while. It usually is almost a pre-litigation process that involves filing, talking to the government, and it may involve additional reviews by the government.

If, for example, the whistleblower had material that was potentially privileged, it is probably going to require the government to set up a taint team. The team can review the material and make sure it is not privileged before the government actually reviews it as part of their investigation. It is going to involve a series of discussions and potentially memoranda to and from the government with respect to the case.

Government Intervention

The government has to decide whether they are going to intervene and actively pursue the case to litigation. If they are leaning that way, they attempt to settle the case. If the government does intervene, they take over the litigation, at least on the claim or claims that they pursue. They do not have to intervene in all claims.

Then it becomes a case for them to handle like any other. If they decline to intervene, the burden would be on the so-called plaintiff-relator (the whistleblower) to decide whether or not to go forward without the government. The whistleblower will have to serve the complaint and go forward as it would in any other litigation.

Statute of Limitations

Under the False Claims Act, the statute of limitations is a little complicated. Generally, the statute of limitations for fraud committed against the government under the federal False Claims Act is six years. There is also a three-year statute of limitations for retaliation against the whistleblower.

Then there is the so-called right of repose. It is three years after the government knew or should have known of the fraudulent activity, but not to exceed 10 years. It is kind of a strange hybrid statute of limitations which can allow a case to go forward even after 6 years has expired, but it is hard to apply. Practically speaking, it is difficult to bring a case involving False Claims Act liability that is outside the six-year general statute of limitations.

Ask a Whistleblower Attorney About the Litigation Process

If you want to alert the government about fraudulent activity, consult with an experienced whistleblower attorney today. They could be your adviser and advocate during the investigation process and could help you pursue a claim if the government declines to take your case. Call today to schedule a consultation.