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WSJ Misses the Mark on Whistleblower Article

The Wall Street Journal on Thursday ran an article entitled “Meet the Serial Whistleblowers.”

The quote the Journal’s editorial staff chose to blow up on the jump page in the print edition says pretty much all you need to know about their editorial bent:

Some critics say the False Claims Act’s incentives go too far, encouraging people to file suits that often go nowhere.

Really? The critics the Journal cites are not upset that many cases go nowhere.  Even meritorious False Claims Cases are hard to prove, but that is not what is bothering these critics.

What bothers them is when whistleblowers succeed. That is why they want to make the cases “harder to bring and reduce damages.” You do not have to reduce damages for a case that goes nowhere. You have to reduce damages when your client is guilty.

The article, which you can find here, does include many strong facts explaining how the law works. It also shows how the doctor they chose to highlight has succeeded in recovering millions for the United States. Still, they seem to want him to go away.

William LaCorte has helped the government recover a huge amount of money from companies that were accused of engaging in illegal activity. That is what the critics are upset about.  If one of his cases goes nowhere, it may take a little time for the United States Attorney’s Office to review and/or a judge to dismiss it, but that is not a big burden when you compare it to his successes. Dr. LaCorte has successfully obtained several hundred million dollars on behalf of you and me and the United States.

You bet the critics are upset at him and this law, the law has gotten us results.

As always, the attempt is to depict the whistleblower as greedy and then whistleblowers have to run around defending the fact that they made money on the lawsuit.

Nobody from the Wall Street Journal asks if Lab Corps — which it reports had to pay $187 million as a result of a settlement in one suit Dr. LaCorte brought — was greedy.  Nobody asks if Merk was greedy when it had to pay to settle allegations it bribed hospitals to sell its product when doctors, including LaCorte, prescribed other heartburn medication. Yes, the drug had side effects.  Merk was also accused of charging Medicare more than allowed. It’s all a rather strange idea coming from the Wall Street Journal anyway.  According to them greed is supposed to be a good thing.  It is apparently only a bad trait when used on behalf of you and me and the United States.

The article includes many facts to balance out the critics and I’m always happy to read about successful whistleblowers in any context.

However, it is also an alarm bell for those of us on the side of whistleblowers. The critics will keep inventing criticism even if it is not factually based. They will ignore the fact that this law is about fraud, not contract disputes and not negligence.

Everybody involved in whistleblower law and in particular in dealing with the False Claim Act has to get ready.  The companies that have been sued successfully are not upset because of cases that were not successful.  They are upset about the millions they have had to pay and they will invent any reason they can think of to attack the law.  They will try those arguments out in newspapers of record until they hit on an argument that appears to work. Here is an article which should be written about a hero; a man who has fought to save us money and prevent companies from abusing the health care system. Yet the story is presented as if there is something wrong with what he is doing.

We have to fight the argument on our terms. The companies that want to defraud America should not be able to point the finger at a whistleblower and call that person greedy. They want to use that tactic, or any tactic, to walk away from the fraud they are committing at our expense, even when it involves our health and safety. According to them only the whistleblower is greedy.

In the meantime, we will wait for the Wall Street Journal to report on those companies who have had to pay out multiple times and millions of dollars because of False Claims Act cases.

Will the Journal call those companies “Serial Fraud Perps” or “Serial Perpetrators of Fraud Against the United States of America” in another front-page article?

Somehow I doubt it.