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Boston Whistleblower Law Blog

SEC files brief in support of international whistleblower

In a number of our posts, we have detailed how whistleblowers need protection (or support) from experienced attorneys as they speak out against fraud or uncover improper billing practices against the federal government. Essentially, whistleblowers are commonly marginalized within their organizations or even fired simply for doing the right thing.

However, there are some occasions where the government itself comes to the aid of a whistleblower. After all, the government has an interest in protecting themselves against fraud, and it also can reward a whistleblower in a successful case. 

Court case considers wartime suspension of statute of limitations

Losing out on a potential qui tam action because the statute of limitations has already run is not something whistle-blowers want to have happen.  Depending on when a whistle-blower becomes aware of a violation and how long it takes to obtain legal guidance and build up the courage to do something about it, beating the deadline can be an issue.

According to the National Whistleblowers Center, a qui tam action must be filed either (a) within six years from the date of a violation of the False Claims Act, or (b) within three years after the government knew or should have known of the violation (provided the filing is within ten years of the violation). The proper deadline for filing such an action lies with the later of these two alternatives. 

Some whistleblowers have a long road ahead

In a prior post, we reported on how the federal government recovered a record amount in fraud payments over the last year. Specifically, more than $400 million was collected under the False Claims Act and $ 31 million was returned under the Security Exchange Commission’s program to protect whistleblowers.

While this suggests that a bounty is available for workers courageous enough to speak out against fraud perpetrated against the government, as well as waste regarding government resources, there are still a large majority of complaints that go unanswered. According to a recent McClatchy report, those who work in government agencies still experienced a long road of adversity before their complaints are actually identified and validated. 

A year to remember for whistleblowers

What a year it has been for whistleblowers. As we count down the last days of 2014, it is worth noting how far protections (and awards) for whistleblowers have come. As we noted in a prior post, the federal government has collected more in fines and penalties this year than last, and a record number of whistleblowers received payments.

Specifically, those who exposed fraud against the government received $435 million under the False Claims Act and more than $31 million through the Security Exchange Commission’s program for whistleblowers. The SEC award was nearly twice as much paid in all of 2013, and nine people were rewarded, which was more than all other whistleblowers were paid in all years prior to 2014.

How whistleblowers can be protected from employer retaliation

Being a whistleblower is a courageous act, as these employees often risk their livelihood, reputation and sanity to expose actions by their employers to defraud the federal government. Because of these risks, zealous employees may not be willing to ferret out the truth about their employers. Nevertheless, under the federal False Claims Act, there are a number of protections that apply to employees.

Essentially, employers are prohibited from taking any action against an employee who participates (or initiates) a Federal False Claims Act case. This means that employer may not retaliate by suspending, demoting, reassigning or terminating an employee on the basis of his or her actions in a potential FCA case. To prevail in a retaliation claim, an aggrieved employee must prove the following:

More qui tam cases brought in 2014

A number of our posts have focused on the benefits whistleblowers receive for bringing False Claims Act cases against companies who defraud the federal government. As we have noted a number of times, whistleblowers stand to be rewarded handsomely for exposing fraud. In fact, a foreign whistleblower was awarded more than $50 million in one of the largest qui tam cases ever.

That case was one of many in the last fiscal year ending September 30 that contributed to a record number of recoveries by the federal government. 

Terminated 9 days after False Claims Act claim, dis-accommodation

In 2012, an instructor for a Department of Defense contractor called ManTech was living and working in South Korea when he was involved in a serious motorcycle accident. He suffered injuries that left him with a permanent limp, so he sought disability accommodations from the company. His supervisor came through for him, allowing him to telecommute during his recovery and then moving his office to the ground floor and giving him a handicap parking space.

Unfortunately, when a new supervisor arrived, that spirit of accommodation for his disability seemed to disappear. Even before his handicap parking space was taken away, the man says, his new supervisor "made known his disdain and, at times, outright hostility toward Mr. Parker's disability even before starting his new position."

Increase in whistleblower tips to SEC in 2014

The $30 million payout to an overseas whistleblower is not likely the shining example of what lawmakers had in mind when they passed the 2010 Dodd-Frank Wall Street Reform Act. Indeed, the law was inspired to combat fraud perpetrated upon consumers and other investors that eventually caused the market collapse of 2008.

However, the law gave the Securities Exchange Commission the authority to initiate a whistleblower program that would reward people who reported fraud and other types of misconduct. According to a recent CNBC report, the program was inspired, in part, by the numerous tips the SEC received about Bernie Madoff, even though the SEC did not detect the fraud for decades. 

What can motivate a whistleblower?

In 2014 thus far, there have been a number of stories announcing settlements in False Claims Act cases involving improper billing of Medicaid and Medicare for services that were either unnecessary or excessive. We have highlighted a few of these cases in prior posts.

In fact, healthcare based FCA cases have garnered quite a bit of interest from federal officials in the past five years. Since 2009, the U.S. Department of Justice has recovered nearly $24 billion in funds from providers, with a majority coming as settlements (and verdicts) based on fraud perpetrated through federal health care programs. Additionally, the Justice Department announced that healthcare related FCA cases would be reviewed by the Criminal Division for prosecution.

But arguably, many of these cases would not have been commenced but for a whistleblower; a person with knowledge of potential wrongdoing (and the courage) to expose fraudulent dealings. This naturally begs the question: what made them do it? There may be a number of reasons behind it, and this post will explore some of them.

Health Care Fraud & Abuse Gets First Person Account on Stark Violations

Students in the Health Care Fraud and Abuse seminar led by whistleblower attorney Bob Thomas were treated to a fascinating retrospective from a successful whistleblower, Elin Baklid-Kunz, the former employee of Halifax Hospital, which recently settled False Claims Act accusations against it for $85 million. Ms. Kunz and her attorney Marlan Wilbanks spoke to the students by telephone connection, and answered a variety of excellent questions from the students.

Having covered the most important areas of health care fraud law (the False Claims Act, the Anti-Kickback Act, the off-label/misbranding/adulteration prohibitions of the Food Drug & Cosmetic Act, and the Stark Laws) earlier in the semester, the students are being exposed in the final four weeks of the seminar to the thoughts of different participants in this dynamic field. Last week, they visited Cambridge biotech Ironwood Pharmaceuticals to hear from its chief compliance officer. Yesterday they heard from a whistleblower and her attorney (concerning a case they had studied previously in the course with respect to the Stark law). In the following two weeks, they will be hearing from two former Assistant U.S. Attorneys, who will be addressing the prosecutorial and defense perspectives.

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