Your Next Move: Determine whether you are a potential whistleblower.
On the one hand, the concept of whistleblowing is simple: in the face of injustice, a whistleblower decides to speak out for what is right. On the other hand, the decision to come forward as a whistleblower is not an easy one. The reporting process can seem foreboding, demanding rigor, precision, and insider knowledge, multiplied for as many agencies as have applicable reporting programs. Moreover, whistleblowers working with these agencies to fight fraud often find themselves at odds with corporate forces that can seem overwhelming. Even as the prospect might seem daunting, whistleblowers who are well-informed are better equipped to make the right decision. Here are three key principles to consider.
As you contemplate being a whistleblower, the first thing you should remember is that you can step forward. Many people are not aware that structures exist to support standing up against fraud. Awareness of these protections can be empowering, and you should understand exactly what your rights are. Whistleblower protection isn’t just a theory: it’s built into the law, and whistleblower protections form part of many government agencies. For example, the Securities and Exchange Commission (SEC) has an office dedicated to whistleblower cases; they call whistleblowers “among the most powerful weapons” in their fight against fraud. The SEC publishes an entire summary of protections for individuals who seek to report fraud. In a similar way, corporations see whistleblowers as an important asset. In a 2007 PricewaterhouseCoopers study of 5,400 companies, whistleblowers were to thank for 43% of fraud detection, whereas internal audits were cited as the detection method only 19% of the time, and law enforcement was responsible for only 3% of detections. Many agencies and companies have whistleblower protections available. As you contemplate your path forward, you should discuss with legal counsel all of the whistleblower protections available to you.
The second thing to remember is that evidence and documentation are important and can take many different forms. It’s one thing to find something suspicious about, say, your company’s financials or contract bidding process; it’s another thing to have evidence of wrongdoing that you can bring to the law enforcement. As you contemplate stepping forward, consider how you can communicate the misconduct most clearly: are there emails that support your claims? Are there important witnesses who might corroborate your claims? So, think: what can you point to for that kind of backup and support for the conduct you are reporting? Here, though, potential whistleblowers are understandably hesitant: some whistleblowers may have stumbled onto this evidence of wrongdoing in the course of their normal responsibilities, and they might be wary of blowing the whistle for many reasons. This concern is by no means insignificant, and is why partnering with excellent legal counsel represents one of your most important considerations.
Building a Legal Partnership
Legal representation will serve you in two key ways. Firstly, your counsel will help highlight your rights in the face of the complex interplay between legal statutes, whistleblower protections, and award programs. Your case is no doubt unique; a good lawyer will be able to serve those unique needs in a way that guides you through the process. Secondly, as noted above, your counsel will do everything possible to protect you and address your needs throughout the process, including key protections related to your confidentiality and anonymity. Your legal team will analyze the facts of your specific case and discuss a plan that honors your commitment to stepping forward while protecting your rights as you do so. Smaller, more specialized firms can be a real asset for you because they’re built for these cases. Often, whistleblower cases are taken on by a firm “on a contingency” basis, meaning that the client does not pay the firm up front: a firm will only receive payment if the client receives a whistleblower award. In addition, bigger firms are often conflicted out and otherwise not a good fit for a whistleblower going against a large company. Smaller firms dedicated to whistleblower cases are different: these firms are streamlined for this unique practice, and whistleblowers benefit from such focused expertise. One of your initial and most important steps then, is to find a firm that has been designed, from the bottom up, to suit your specific needs.
Success as a Whistleblower
Remember, ultimately, that you have support as a whistleblower, and that challenges can evolve into significant benefits as you stand up for what is right: The Securities and Exchange Commission (SEC) Whistleblower Program made headlines for awarding over $1 billion to whistleblowers since the program began. The Commodity Futures Trading Commission (CFTC) recently issued a record $200 million award. The U.S. Department of Justice (DOJ) also recently released its False Claims Act (FCA) statistics for the 2021 fiscal year. According to the DOJ, in fiscal year 2021, the government paid out $237 million to whistleblowers who exposed fraud and false claims by filing qui tam lawsuits. Scores of people from all walks of life have spoken out for what they know is right, and their success stories could sound something like yours.