Page 101 - An Indispensible Resource for Being a Credible Activist

Alternatively, if you don’t mind losing your job and see this as an adventure and an
experience to be had, go for it, but still be careful. You want to have good form. Be mind-
ful of being discreet as you gather the evidence that may either protect you or prove your
case at some point in the future. Be careful about calling attorneys, TAF, or GAP for advice
from your work phone. Don’t discuss your suspicions with anyone unless the lawyer who
specializes in qui tam cases advises you to do so.
As mentioned, qui tam cases are filed under seal, and a significant part of winning such
a claim is that you are the first source who brings the possible fraud to the attention of the
government. It may be stressful to keep such information to yourself, and so you will need
a well-qualified qui tam attorney with whom you can speak about your concerns and
stresses as you go through this process, which can also take time. It can take months for the
government entity that is being defrauded to respond to the attorney’s papers alleging fraud
under the FCA. Frequently there are complex internal processes involving a number of deci-
sion makers in government who jointly decide whether to take on the case. If they do so,
there is a very good chance that your employer (or former employer) will settle with the
government and avoid the public scandal of going to court. Frequently, companies are
allowed to admit no guilt but still settle out of court for an amount decided by the govern-
ment, either the U.S. Attorney’s Office (USAO) or the city or state attorney general’s office.
As the “relator,” or, more commonly, “whistleblower, in the case, you will receive a share
of the total amount the company is fined. This “relator’s share” is often calculated by the
FBI and/or state or city authorities based on how helpful you have been during their inves-
tigation and how much risk you were exposed to or chose to take.
One experienced qui tam attorney very aptly said, “Whistleblowers earn their share.”
This is very true. The stress alone can cause sleepless nights, irregular eating habits, worry,
fear, isolation, irritability, weight gain or loss, panic attacks, heart palpitations, asthma
attacks, headaches, and difficulty concentrating. This path is not for everyone, but it is one
option for the credible activist. One successful whistleblower in a federal qui tam case said
that gathering evidence, meeting with the FBI, meeting with the USAO, and knowledge of
what was happening did not frighten her. What did frighten her was when she had to offi-
cially and formally let her employer know that she knew what was going on. This is often
referred to as “blowing the whistle internally,” and depending on the workplace culture,
whether the company has a tendency to unlawfully retaliate against employees who make
legitimate complaints, and other factors, the response can be anything from nothing to full-
blown fright-inducing retaliation. See the HR Tool entitled “Sample False Claims Act ‘Blowing
the Whistle Internally’ Fraud-Prevention Memo,” on pages 87–88.
You will want to consult with an FCA attorney before writing and delivering a memo
to your workplace. Additionally, if your workplace demands that you meet with them
regarding your memo, which they inevitably will, you will want to demand that your attor-
ney be present with you at this meeting. If you experience retaliation for raising these issues,
you may want to speak with your attorney about presenting a memo like the one shown in
the HR Tool entitled “Sample Memo Asserting Retaliation for Having Raised Concerns about
Fraud or Possible Fraud,” on page 88.

84 The H R Toolkit