Can You Remain Anonymous While Blowing The Whistle on Fraud?

Many whistleblowers face a situation where they want to report fraud through a confidential whistleblower case. The main questions here are 1) what constitutes fraud in these cases, and 2) can you actually file a case without attaching your name to it in the public record?

Below, whistleblower attorney Tony Munter discusses these types of cases including what constitutes a fraud case and how hard it is to remain anonymous. To learn more schedule a consultation for free today.

What Kinds Of Violations Of Law Are Fraud?

Well, it all goes back to a question of what the government was contracting and agreeing to pay for. So, it has to have some material connection to the government’s decision to pay, is the general rule to follow. If it doesn’t really matter, if nobody really cared, then that’s one kind of issue. But if it would affect the government’s decision to pay for a service or good, then it can be fraud if somebody is lying about what got paid.

In a Medicare/Medicaid context falsifying who provided the services might create a legal issue, falsifying the qualifications of people who permitted the services might also create an issue. There have been contracting cases recently that show that not paying a prevailing wage if there’s a contract with the government under the Davis-Bacon Act requiring a prevailing wage, that could sometimes create False Claims Act liability.

There have been cases showing where if you certify you’re following Clean Air and Clean Water Act laws you could be creating False Claims Act liability.

So, violating a law when it’s a material part of the contract can become an issue of liability for False Claims Act. And you see this a lot in healthcare context because there’s an awful lot of laws and regulations designed to keep us safe with regard to pharmaceuticals and with regard to medical devices, with regard to how these drugs are marketed and how they are given FDA approval.

So, if you violate laws along those lines you certainly can be held liable under the False Claims Act.

How Hard It Is To Remain Anonymous As A Whistleblower?

Well, it can depend on which type of law you’re filing a case under. Under the Federal False Claims Act, you initially file the case secretly. There have been some cases filed as a John Doe but those cases does it very hard to make work. Eventually under the Federal False Claims Act generally speaking you will not remain anonymous, but you will remain in secret for some period of time while the government investigates your case.

So, it can take a while for you to explain your case to your lawyer and for you lawyer to get everything together and file. The government will then take some time to investigate your case. While all that’s going on nobody is going to know that an individual filed a case. The laws of logic are not suspended at some point if the government goes to the defendants and says we have a False Claims Act case filed against you, it may be possible that the defendants might figure out who the person is, but sometimes not.

It generally becomes public when the government makes a decision about whether they’re going to support the case or not support the case and that takes quite a while.

Now, having said that, under the SEC whistleblower law and the CFTC whistleblower laws, which were enacted as part of the Dodd-Frank legislation and which allow you to sue for securities fraud, it’s a lot easier to remain anonymous. You can file an action under those laws through an attorney and you can remain anonymous even as they award funds. It’s only the agencies that may know, but not the public and not the defendants as far as we could tell. It’s really quite amazing, but they’ve been able to do that and keep the whistleblower anonymous. Although court actions may reveal the whistleblower at some point.