Whistleblower Claim Response
Whistleblower claims can create substantial exposure to both liability and reputational harm. Companies’ responses to whistleblower claims must be strategic and swift, and they must be focused on preventing DOJ intervention and federal enforcement litigation.
Whistleblower claims under the False Claims Act and other federal statutes have become more common in recent years. As the total amount of whistleblower (or “relator”) compensation has swelled, and as social media has empowered more people to take action, more and more companies have faced allegations of fraud and other corporate wrongs.
When a whistleblower files a valid claim under the False Claims Act (or any of the various other federal statutes that provide whistleblower protection in the United States), the federal government has a legal obligation to investigate. The purpose of this investigation is to assess the veracity of the whistleblower’s allegations and allow the government to make an informed decision regarding whether to “intervene” and take over the case. If the government intervenes, then the U.S. Department of Justice (DOJ) will move forward with civil or criminal prosecution. If the government declines to intervene, the DOJ will step aside, but the whistleblower can still pursue the case independently.
Federal Corporate Counsel for Investigating and Defending Against Whistleblower Claims
If your company is faced with a whistleblower claim, given that the federal government will be investigating the claim, and given that the claim could present millions, tens of millions, or even hundreds of millions of dollars in liability exposure, how your company responds is critically important. You need to conduct an investigation of your own, and you need to insert yourself into the federal government’s inquiry. The attorneys at Oberheiden, P.C. have experience on both sides of high-stakes federal whistleblower claims, and we can use this experience to protect your company against unnecessary financial and reputational harm.
5 Key Aspects of Federal Whistleblower Claim Response
When faced with federal whistleblower claims, companies must conduct their own internal investigations in parallel with the government’s investigation into the whistleblower’s allegations. These investigations should be focused on determining whether the whistleblower’s allegations can be substantiated; and, if possible, identifying the source of the information underlying the whistleblower’s allegations as well.
Like all internal investigations, investigations triggered by whistleblower claims must be appropriately comprehensive, they must be structured to protect confidentiality to the fullest extent possible, and they must be focused on uncovering the truth – whatever that might be. If the whistleblower’s allegations have merit, this is something you need to know before you start dealing with federal authorities.
In any case, the key to an effective internal investigation is evidence – either probative evidence of compliance or limited (or no) evidence of impropriety. If you are going to convince the DOJ not to intervene and prosecute, you are going to need the evidence to be on your side.
As external counsel, we manage and oversee the entire investigative process, from structuring the investigation and assembling the investigation team to interviewing witnesses and preserving relevant electronic records. We focus on getting to the bottom of the whistleblower’s allegations as quickly as possible, and we do so in parallel with making initial preparations to interface with federal authorities on the company’s behalf.
2. Investigation of the Whistleblower
In federal matters, the whistleblower’s name is generally kept confidential until his or her compliant is formally unsealed. However, this does not prevent the subject of the investigation from investigating the whistleblower’s identity. The whistleblower’s identity can be relevant for multiple reasons, from determining his or her motivation to questioning his or her credibility. In many cases, it will be possible to convince the DOJ not to intervene simply by demonstrating that the whistleblower is not a reliable source. This could be the case, for example, if the whistleblower is a disgruntled former employee or an employee of one of your company’s competitors.
3. Defense Strategy Formulation
Once we have all of the relevant facts, then we can assemble a defense strategy that is tailored to the circumstances at hand and focused on securing a favorable result as efficiently as possible. For every federal allegation, there are a multitude of potential defenses, and these defenses can be asserted both pre- and post-intervention. Depending on the allegations and factual circumstances involved in any particular case, some examples of these defenses include:
- Procedural deficiencies in the whistleblower’s claim – Whistleblower claims are subject to various procedural requirements, and raising procedural deficiencies can be an effective defense strategy in many cases. While identifying these deficiencies might not be enough to convince federal prosecutors not to press charges (although it can be enough in some cases), at the very least this will raise some questions and slow down the investigative process.
- Substantive deficiencies in the whistleblower’s claim – While the pleading requirements for whistleblower claims are limited, they are not non-existent. Among other requirements, relators must submit an adequate “disclosure statement,” and failure to do so may provide grounds for seeking a dismissal.
- Inadequate evidence of intent – While some federal laws establish strict liability for certain offenses, most civil and criminal offenses at the federal level require some level of intent. If the whistleblower’s claim does not allege the requisite intent or the evidence is insufficient to establish the requisite intent, then no federal liability should attach.
- Inadequate evidence of other elements of the alleged offense – While intent is a key element in many cases, it is not the only element that needs to be proven. In order to intervene and move forward with civil or criminal charges, federal prosecutors must be convinced that they have the evidence needed to prove each element of the alleged offense.
- Affirmative evidence of statutory or regulatory compliance – Affirmative evidence of compliance can be the strongest defense to whistleblower allegations. However, prior to presenting evidence to the federal government voluntarily, it is imperative to make sure that doing so will not result in unnecessary and unintended exposure. For example, while presenting affirmative evidence of lack of intent could prevent criminal charges from being filed, it could also potentially provide federal prosecutors with the evidence they need to pursue civil enforcement.
4. Pre-Intervention Defense
When faced with a whistleblower claim, a company’s primary objective should be to prevent intervention. While this will not necessarily prevent litigation (the relator may still choose to pursue his or her claim independently), removing the government from the case is still a significant step forward and represents a major victory. In order to protect our clients pre-intervention, we present comprehensive cases for dismissal, and we take a multi-faceted approach to convincing the government’s attorneys that the whistleblower’s claim does not warrant further dedication of their time or the government’s resources.
5. Post-Intervention Defense (or Private Civil Litigation Defense)
When intervention cannot be avoided, or when a relator chooses to pursue civil litigation despite the government’s non-intervention, we turn our focus toward using litigation tactics (and settlement tactics, when appropriate) to secure a favorable pre-trial result. Our attorneys are skilled litigators who have successfully resolved cases in federal jurisdictions across the country, and we utilize the full gamut of pre-trial and trial tactics to protect our clients against undue liability.
Why Choose Oberheiden, P.C. for Federal Whistleblower Claim Response?
A whistleblower has filed a claim against your company and you need federal defense counsel you can trust to protect your company and its shareholders to the fullest extent possible. Why should you choose Oberheiden, P.C.?
- We have vast experience in the areas of investigations at the corporate level and whistleblower defense. Our attorneys handle whistleblower claim defense from the initial internal investigation through final resolution at the federal level. We have broad experience in matters involving allegations of healthcare fraud, securities fraud, consumer protection, data protection violations, and other federal offenses.
- We have significant prior experience handling whistleblower claims for the federal government. Several of our attorneys are former DOJ prosecutors, U.S. Attorneys, and Assistant U.S. Attorneys who previously handled whistleblower claims on behalf of the federal government. Our investigations team also includes several investigators and consultants who previously served long tenures with the Federal Bureau of Investigation (FBI) and other federal law enforcement agencies.
- We put a team of senior attorneys on your side. Each attorney at Oberheiden, P.C. is highly experienced in complex and high-stakes federal matters. You will have a team of senior attorneys working to protect your company to the fullest extent possible at all stages of your case. We take a team approach that promotes efficiency and maximizes the benefit of our attorneys’ collective experience, and all of our attorneys make themselves available to our clients on an as-needed basis.
Speak with a Federal Whistleblower Claim Defense Lawyer at Oberheiden, P.C.
Is your company being forced to defend against a federal whistleblower claim? If so, contact us to discuss your defense strategy in confidence. We are available 24/7 and we handle federal matters nationwide, so call 888-680-1745 or get in touch with us online to speak with one of our lawyers today.