Whistleblower Trends: An Increase in Cases

The following is taken from an interview with whistleblower attorney Tony Munter as he discusses developing trends in whistleblower cases. To learn more schedule a consultation today.

The law was gone for a long part of our history, but it was basically resuscitated in 1986. That’s not a long period of time and likely for the first five years of that, cases stayed under seal. So, it’s taken quite a while for people to really understand that they have this right to file cases now.

In addition, you’re starting to see a little bit more of a general understanding, not amongst everybody, but amongst lawyers and employment lawyers in particular, that there’s an option out there and a potential way for people to file and do something as a whistleblower.

Whistleblower Legistlation

In recent years, there have been some dramatic pieces of legislation like the Dodd-Frank Act, which created two new whistleblower laws. I think this also brought the public consciousness the idea that you could be a whistleblower and that whistleblowing is a good idea under the right circumstances. It can be an idea that can provide you with an award or at least that whistleblowing should be protected under the law.

Those kinds of ideas are still relatively new and fight against sort of the idea that we talked about initially which is that whistleblowing is still dangerous and that some people don’t like whistleblowers. But I think there’s starting to be a recognition that whistleblowing is really the most powerful way of fighting fraud.

For the first time in the young law’s history, it’s starting to really fight fraud. While the law does go back to Lincoln administration, it was dormant for many years. I think we’re starting to see a sort of a maturing in the legal community of understanding that whistleblowing should be supported.

What Is The Worst Kind Of Case That You Have Heard About?

It’s kind of strange because for a whistleblower lawyer obviously the worse the activity a contractor engages in, the stronger a case for the whistleblower. There have been a lot of cases unfortunately under the False Claims Act that don’t simply rip off the government in a straight financial sense. That is not to say that financial cases, like accounting cases or lying about bills, are not good cases. Those are strong False Claims Act cases.

But there’s also been a sort of a subset of False Claims Act cases that have involved real harm to individual people. Cases of defective products that police have relied upon that might have gotten them killed, defective products that might have gotten service people killed. The most obvious and important danger in this subset involves the healthcare context, when someone is selling defective pharmaceuticals, or pharmaceuticals that were approved through some kind of fraudulent process that doesn’t really say whether they can work, or medical devices that don’t really do what they’re purported to do and cause patients harm.

Obviously some of the most egregious false claims are those related to any type of medical facility that is providing horrific care in the sense of not really providing any care at all. I think those are the worst cases because not only you’re talking about a situation in which the government is harmed, but obviously people who are relying in good faith on programs that the government is funding are also getting harmed as well.

How has Whistleblower Law Changed Since You’ve Been Working These Cases?

There have been two or three major changes. Over time, whistleblower lawyers and defendants have gotten creative and tougher in fighting False Claims Act cases. As a result, there were two major amendments to the False Claims Act in 2009 and 2010, both of which strengthened the False Claims Act and fought back a little bit on some of the progress that the defense was making. Those were the Fraud and Reinforcement Recovery Act and part of the Affordable Care Act; both had important provisions to strengthen the False Claims Act. In addition, the IRS enacted a whistleblower provision.

When I first started, there wasn’t really an IRS whistleblower office and you couldn’t sue for tax fraud under the False Claims Act. There were very few options available for a whistleblower who wanted to report tax fraud; that’s not the case anymore. Recently, under the Dodd-Frank legislation, two new whistleblower officers were created to report security violations and securities law. You can file with the Securities and Exchange Commission and there is a similar law through the Commodity Futures Trading Commission.

Those are some major advancements under whistleblower law; new whistleblower offices and new options available to whistleblowers. In addition to which, since I started, quite a few states have enacted their own False Claims Acts. There certainly were not 29 states plus the District of Columbia with their own False Claims Act when I started. There might have been a few, but it wasn’t that many. We’ve certainly seen expansion in the idea of rewarding whistleblowers for information that may help states recover money.