SEASON 1: THE WHIPP- Whistleblower Information & Protection Podcast
Season 1, Episode 1
Whistleblower Information & Protection Podcast
Season 1, Episode 1 – Transcript
Welcome to the first podcast of the WHIPP, the whistleblower information and protection podcasts. This is brought to you by Brown LLC. Brown LLC is a law firm led by me, former FBI Special Agent and Legal Advisor Jason T. Brown. Our firm handles whistleblower matters all over the country in conjunction with local counsel and we’re only paid if we win your case. Past results don’t guarantee future success and nothing said here in should be construed as legal advice that you can rely on. So if you have a question about your rights as a whistle blower, you should definitely speak with a whistleblower law firm who offers free consultations like our firm by calling (877) 561-0000. For the first episode of WHIPP, we will get into the five most commonly asked questions by whistle blowers.
Question number one, “How much money is in it for me?”
Well first let’s break down what it means to be a whistleblower. To be a whistleblower you are essentially blowing the whistle on illegal conduct within the confines of a company by an individual or some other entity. For you to succeed in this area of law, generally, it should not just be about the money, it has to be about a principle. It has to be about doing what’s right, but notwithstanding that at the end of the day you don’t get apologies from companies. You don’t get them to admit that they’re wrong. The apology is them paying some degree of money. So what is in it for you? A percentage of what the government recovers. Most type of whistle blower actions nowadays are thought to be brought under something called the False Claims Act (FCA). In the False Claims Act, also known as the Lincoln Law, when the government is defrauded, generally a Medicare or Medicaid program, the whistleblower who is unearthing the fraud for the federal government to learn about it is entitled to up to 25% of what the government recovers.
Generally it will be less than that. 25% is the high end. 20% is the medium ground and generally between 15 and 20 is where you can expect if the government takes a large role, but that’s not all a bad thing. There’s a process and a very definitive type of process that’s involved in determining whether or not cases are viable in the whistleblower world. First of all, a complaint must be filed under seal. While it’s under seal where the defendant does not know about it, the government has an opportunity to evaluate your case. In evaluating the case, it can decide whether to intervene, meaning get involved in the case directly or to pass on the case, not intervene. If it intervenes, generally you will get less percentage wise, but it could mean more money for you as the whistle blower, also known as a relator. Why is it more money? Because statistics show that the average value of an intervened case is roughly $13 million a non-intervened case is $3 million. Now that assumes that the case is viable at all because most cases flame out along some sort of the way. So basically, you can get paid an awful lot of money for doing the right thing, although nothing is ever guaranteed.
Question number two that whistleblowers ask is, “How long will it take?”
Good things come to those who wait but not to those who wait too late. And whistleblower litigation can take a long, long, long, long, long, long time. Now if that was a lot of “longs” and you’re impatient about what’s coming next, this may not be the right type of case for you to file. Because for as many “longs” as I said, which may have been six or seven, some cases last more than that in terms of years. Why does it take so long? Well like we just mentioned, the government has an opportunity to investigate the matter while it’s under seal. And while some terrific things come from these cases based upon the government investigations, the government is always triaging and what do I mean by that? This is an important thing for the government to cut down on government fraud and certain things are prioritized. For example, right now opioid cases and opioid litigation is prioritized. So whistle blowers who know about pain pills or kickbacks in exchange for a certain, opioid type of medication, those cases may get to the top of the pile. Cases in which there’s a harm to patients are going to be prioritized, but cases purely about economic harm always seem to find themselves in the middle and go to the bottom of the pile in deference to those other important matters.
So while the government’s investigating it can take several years. Now hopefully at the end there is a rainbow and there’s a pot of gold in terms of the government taking its time, meaning that it’s more inclined than not to intervene or take action in the case. But unfortunately there’s no rule that governs or makes that to be case. So this can take a long time from our experience. Some of the shortest periods of time have been roughly about a year and that’s when you have a very clean type of violation, very crisp information from the relator/whistleblower and you have a motivated AUSA (Assistant United States Attorney) working the case. So there’s no guarantee how long a case can potentially take. It could and most likely will take years. If it’s a bigger case, there’s a possibility for one year on the short end, but don’t count on that at all. I would expect anywhere between two and three years for most whistleblower litigations and that may be on the short end.
Question number three, “Will my identity as a whistle blower be known?”
The answer is most likely yes, at some point. Under the False Claims Act though, you have time before the defendant or the wrongdoer finds out about your identity. The case is filed under seal, which means it’s confidentially filed without serving the defendant a copy of the complaint. Most litigations upon filing, there’s a public record and you have to serve the defendant with the copy, not under the False Claims Act, the exact opposite. The court seals the docket, so only those in the know can know and see the docket and you are not supposed to serve the company. This is an important point if a lawyer is listening in, about commencing the action because if you commence the action wrong, you may destroy it right from its inception. The identity of the whistleblower is generally put into the complaint.
From our experience, we generally only take cases under the False Claims Act in which the person is willing to go forward with their real identity. If the individual cannot commit to putting their real name to it, bad things have happened historically to the different cases. Now, some people have tried to file these anonymously. They’ve tried to file them through the use of dummy corporations. Both techniques can be used. We strongly disfavor them at our firm for a variety of reasons, but we’re open to listening for certain circumstances about the pros and cons and have a discussion about doing that. To drop a footnote, there are other types of whistleblower actions such as an SEC whistleblower action where potentially you can be anonymous from start to finish with the use of an attorney. But under the False Claims Act, generally after the government is done evaluating the case in determining whether or not it wants to intervene, at some point the case will become unsealed and your identity will be known.
Questions number four and five are somewhat interrelated: four “Will I suffer from retaliation ?” and five, “How am I protected?”
Well, under the statute there’s a strident mechanism for protecting whistleblowers. Generally it’s called an H claim for retaliation against a whistleblower, but of course since the matter is under seal, how do they know that you’re a whistle blower and you’re engaged in a protected activity? This gets to be a very complicated fact specific analysis type of inquiry. I strongly suggest that on the front end, before you take any action, even educating the company regarding its own wrongdoing, you consult with counsel first. We want to blow the whistle the right way. Oftentimes, if you’re trying to report in the company’s internal, reporting mechanisms, well sometimes that’s a one way door to get fired. It shouldn’t be, but it is. You need to understand what your rights are before you complain to the company and what your options are, what your parachute is, which may be an old expression, but what your exit strategy is from the company.
That’s why if you file a case of False Claims Act under seal, you have time to work through your strategy about what your exit will or might be. If you want to leave the company and if the company’s engaged in very, very bad conduct, you might want to start thinking about getting out of there anyway. Why is that? Because some of this conduct under the False Claims Act is not just civil penalties but could be criminal and you certainly don’t want to be wrapped up in something along those lines. So once your identity is disclosed to the defendant, technically under the law, they may not retaliate against you. Functionally, they might. It may happen for a variety of reasons. They will want you out the door. They may pay you handsomely to get out the door or they may find some sort of pretext to fire you. You need to go over this with your attorney and you need to have a candid conversation about this.
Those were the top five questions asked by whistle blowers, but ironically one of the most important questions is not often asked. People assume and the question is, “Do I qualify as a whistleblower?” That question will be answered in our next exciting episode. This was our first episode of WHIPP, the Whistleblower Information and Protection Podcast. We look forward to receiving your feedback, your questions or your comments. Please: if you’re a potential whistleblower, do not leave any of those things public contact us directly. Blowing the whistle is a very serious matter and if you’re thinking of blowing the whistle, you should consult with a whistleblower law firm that focuses on this particular area of law. Our firm would be happy to speak with you. We do offer free consultations, (877) 561-0000 but even if you don’t consult with our firm, look around and consult with a firm that really has a focus of its practice on whistle blower litigation. Thank you and have a great day.
Season 1, Episode 2
Whistleblower Information & Protection Podcast
Season 1, Episode 2 – Transcript
This is the second episode of the WHIPP, the whistleblower information and protection podcasts. This is brought to you by Brown LLC. Brown LLC is a law firm led by me, former FBI Special Agent and Legal Advisor Jason T. Brown.
Our firm protects whistleblowers all over the country in conjunction with local counsel and we’re only paid if we win your case. Past results don’t guarantee future success and nothing said herein should be construed as legal advice that you can rely on. So if you have a question about your rights as a whistleblower, you should definitely speak with a whistleblower law firm who offers free consultations like our firm by calling (877) 561-0000.
In the first episode of the WHIPP we discussed the top 5 questions whistleblowers ask. If you have a whistleblower question you’d like to ask, it’s not too late and you can do so by emailing us at email@example.com or calling and speaking with one of our whistleblower lawyers.
In today’s episode we will cover a very important, but often overlooked question: that is,am I considered a whistleblower under the law? This questions is much more complicated than you might think. There is no commonlaw regarding whistleblowers, so in order to become a successful whistleblower you have to have done a couple things:
1) You must be invoking a statute that’s designed to protect whistleblowers.
2) You must follow the rules under that statute.
Sounds simple, but it’s not. The rules are often labyrinthine, which means maze-like and if you fail to blow the whistle in the right way you may forfeit your rights to prevail.
The most lucrative statute in recent years to file a whistleblower complaint under is the Federal False Claims Act. This is a whistleblower statute for individuals who have information about systemic or widespread fraud against the federal government. This generally manifests in Medicare fraud, Medicaid fraud or defense contractor fraud.
Let’s break this topic down further. An important element of the statute is the information has to be systemic or widespread or a one-time high dollar type of scheme in which the federal government and thereby the taxpayer is defrauded. Let’s discuss what this doesn’t cover. The False Claims Act really isn’t meant to be a tool to report an individual person who is receiving Medicare benefits or Medicaid benefits falsely. While that is actionable under the law, the statute is meant to address the fraud of entities who do business with the federal government, not the beneficiaries of the Medicare and Medicaid program.
So for example, if you know that Homer Simpson makes too much money working at the nuclear power plant to collect Medicaid benefits, but he’s still doing it anyway, then although Homer may be civilly and criminally liable for misconduct under various statutes, you will generally not be able to receive anything under the False Claims Act.
Let’s change the fact pattern slightly and assume that Homer hurts his knee at work and Waylon Smithers tells him he must go to Dr. Hibbert. Dr. Hibbert finds out that Homer is on Medicaid and tells him that he gives all his Medicare and Medicaid patients the works and Homer leaves with a knee brace, back brace, ankle brace, and various other goodies paid for by Medicaid which is you the taxpayer.
Also, Dr. Hibbert then bills Medicaid for an x-ray he didn’t do, a 1 hour examination when he only spent 2 minutes, and six follow up visits that didn’t occur and then pays Waylon Smithers $200 for the referral. Then Dr. Hibbert has committed a whole bunch of Medicaid Fraud.
He has committed Medicaid Fraud for billing for services not rendered, by charging Medicaid for visits that didn’t occur and an x-ray that never happened. He is committing Medicaid Fraud by upcoding: billing Medicaid for an hour visit when in fact it was just 2 minutes. He is also committing fraud by engaging in violations of the Anti-Kickback Statute when he paid Waylon Smithers $200 for the referral of a Medicaid patient. All of these are actionable violations.
Homer is now on the cusp of qualifying as a whistleblower. On the cusp because he knows of a specific fraud committed on the government by a healthcare practitioner, but the challenge is that he doesn’t know the extent that it’s happening beyond the billing occurring with his Medicaid. Other information that may help his case is that Dr. Hibbert told him that, quote “he gives all his Medicare Patients and Medicaid Patients the works.” A skilled whistleblower lawyer can then try to look up public information to try and corroborate Homer’s information using the Doctor’s NPI number. Some firms might file this whistleblower lawsuit. Others might not.
Conceptually and classically a whistleblower is someone who has information from the inside who unearths it, not an outsider. But outsiders who have good information about the conduct may still qualify under the whistleblower statute so patients should not outright dismiss their chances of bringing such an action.
Now let’s say Dr. Hibbert hires a recently fired Apu to serve as his office manager and APU is privy to all the Medicare Fraud and Medicaid Fraud from the inside. Then Apu would classically fit under the False Claims Act whistleblower statute. He is an insider who has information regarding the systemic defrauding of the federal government and if he blows the whistle the right way using the False Claims Act he could receive up to 30% of what the government recovers which could be a considerable recovery for doing the right thing.
One cautionary thing the whistleblower lawyers at Brown, LLC always recommend: many times there are hotlines within companies to report fraud and you might think you’re doing a good thing by using the hotline. Many a case has come to our firm where the individual utilized the company’s internal reporting mechanism and shortly thereafter was harassed and ultimately terminated. Those hotlines may be a hotline to having yourself fired, so before using one you should speak with a whistleblower law firm like ours.
One more thing regarding the insider/outside distinction. A hot button topic right now is the over-prescription of opiates and the cost to the federal government through its Medicare Program and Medicaid Program and the kickbacks that are given and generated by pill mills. Whether you’re on the inside or outside of an opiate scheme, the federal government is prioritizing these cases and they will act if you have concrete information.
Besides Medicare fraud and Medicaid fraud under the False Claims Act, the other big topics under the False Claims Act are defense contractor fraud and the emerging topic of the PPP – the Payroll Protection Program.
We’ve all heard of the federal government paying thousands of dollars for a screw and in the end it’s the taxpayer who’s hurt by that screw. Defense contractor fraud can happen with overinflated costs, not complying with material terms of the contract( such as a made in America clause when the company is surreptitiously purchasing from a restricted country like China), billing for services not rendered, sub-standard parts and many other schemes that are actionable under the False Claims Act. When soldiers’ and sailors’ lives are at stake and there’s substandard parts the government will want to know about it.
The PPP cases are emerging, and the federal government wants to make an example of entities that have misused and abused funds that are purposed to pay the salaries of employees in the time of COVID.
So the question “Am I a Whistleblower?” is not a simple one. In today’s episode we discussed the most lucrative statute, the False Claims Act. Why I say the most lucrative is that each year several billion dollars are recovered through the False Claims Act and at an average 20% whistleblower award that’s hundreds of millions of dollars a year awarded to whistleblowers under the False Claims Act.
There are still many other statutes to discuss that a whistleblower can qualify under. Some of the most prolific ones are the SEC whistleblower program (Dodd-Frank), the CFTC whistleblower program, and the IRS whistleblower program,
California’s state whistleblower program that enables false claims act [claims for fraud] against private insurance, Illinois’ state whistleblower program that enables false claims act[claims for fraud] against private insurance and certain tax cheats, and New York’s state whistleblower program that enables a whistleblower to recover who provides information about tax cheats. We’ll discuss all this and more in our next episode of WHIPP.
Please, if you’re a potential whistleblower, do not leave any of those things public. Contact us directly. Blowing the whistle is a very serious matter and if you’re thinking of blowing the whistle, you should consult with a whistleblower law firm that focuses on this particular area of law. Our firm would be happy to speak with you. We do offer free consultations, (877) 561-0000 but even if you don’t consult with our firm, look around and consult with a firm that really has a focus of its practice on whistleblower litigation. Thank you and have a great day.
Season 1, Episode 3
Whistleblower Information & Protection Podcast
Season 1, Episode 3 – Transcript
Bayer Pharmaceuticals really stepped into it When they purchased Monsanto with this open ended liability for the roundup cancer link they’ve been looking for a way to end it after a Series of verdicts came back against the company Individuals have heard the evidence presented by some of the best plaintiffs’ attorneys in the country and countered and parried by some of the best defense attorneys in the country have concluded Time and time again that there is a link between roundup and Non-Hodgkin’s lymphoma based upon the scientific evidence out there Bear trying to tie off this 10 billion dollar liability and that’s billion with the B try to end this so it could provide clarity for its stockholders the settlement contains provisions that settles for up to a 100 20 5 1000 claimants for roughly Billion dollars now different people’s cases will have different values I’ve often theorized at the beginning of this case that some of the most valuable cases and I say valuable in a clinical sense referring to what the settlement payouts will be for a particular case but the cases that would be given the most value would be ones that had long term exposure due to their exposure in a commercial or industrial setting Like landscapers or groundskeepers or other types of industrial positions Then value would be assigned based upon Non Hodgkin lymphoma and how variant the condition is from NHL the different types of lymphoma and some leukemias like CLL Other factors in terms of settlement value or dollars a sign will be the age of the individual the age of the individual when they are first diagnose the length of exposure the proof of exposure whether or not the individual has any preexisting conditions linked to the NHL and whether or not they have a family history of the condition in the upcoming weeks we will be rolling out more information about the round settlement which did hit a Little snag when the settlement was first released publicly I commented that there was a provision in the settlement that would be very troubling and that is the future claimant portion of the settlement which was a set aside for individuals but essentially binds individuals to a settlement who don’t have noticed yet that they may potentially have rights and that’s why most class actions remain class actions and mass torts armes torts The proposal involves future claimants having to submit to a science panel and be bound by the science panel’s conclusion of whether or not there is a link between Non-Hodgkin’s lymphoma and round up I had speculated that it would be difficult if not impossible to bind future individuals who don’t have notice of this resolution and may in fact not even be injured yet if their condition doesn’t manifest for several years There is also though quite a bit of good in the settlement and people have to remember that the round up settlement is a settlement in a settlement you don’t get everything you want most of the time both sides often hold their nose and agree to the resolution A settlement is in dollar for dollar everything a plaintiff could get a trial that’s generally not something a defendant would agree to and less it’s something called a paper violation which means the case can be proved on the papers and it’s not debatable Here there are liability arguments in defenses some juries have concluded that roundup didn’t cause the cancer doesn’t cause Non-Hodgkin’s Lymphoma the federal government has weighed in saying that they don’t think it causes non Hodgkin lymphoma so from the defense perspective they have arguments and it could potentially be defensible In terms of mass tort settlements this is an excellent settlement where most claimants will average from 50 to 6570 thousand dollars stay tuned for more recent developments on this podcast and on our blog even as of this writing the judge did reject the quirky provision that we had been critical of
The next topic we’re talking about is the massive Novartis settlement which resulted in a 675 million dollar settlement For the government and the taxpayer in A $75,000,000 whistleblower award for the courageous individual that step forward First hats off to the United States attorney’s office who put together an excellent case attorney Eric Young who is handling the case for the whistleblower and of course Ozzy the whistleblower himself who had the courage to come forward to help the taxpayer an fraud and had the courage to wear a wire and do the right thing when it wasn’t always easy to do the right thing in that industry For doing the right thing here for having the integrity and courage of stepping forward he is going to be rewarded with $75,000,000 which is a lot of money for doing the right thing The award is under the False Claims Act the False Claims Act incentivizes individuals with inside information to blow the whistle on fraud against the government and against the taxpayer and thereby enable that whistleblower to retain or to get a whistleblower award that is a percentage of what the government recovers The False Claims Act oftentimes refer to as the Lincoln law is a very powerful statute that enables whistleblowers who come forward to receive a percentage of the award for blowing the whistle on things like Medicare fraud Medicaid fraud PPP loan fraud defense contractor fraud and customs fraud but for this particular case there’s really two areas that the government held novartis accountable for although it should be noticed novartis didn’t admit to liability but 600 70 5 millions a lot to pay without at least inherently acknowledging that they had Culpability the big violation here is kickbacks and i want to walk you through the first one In the anti-kickback act you can’t do indirectly what you couldn’t do directly And there were two trains of alleged schemes that were going on here In order for the health care system to work individuals also have to take some degree of ownership about their medical costs To keep the costs under control so there’s something called a copay Therefore individuals who have copays share in the costs and help trying to keep the cost under control Eliminate that co-pay somehow and you eliminate the incentive of the individual to go for a rival product that does have a copay In this case it was alleged that Novartis had two dummy foundation set up that were designed to pay peoples copay so there at a pocket costs for Novartis is drugs was nothing Now you may say well that’s terrific for the individual consumer and it may help the individual consumer But it may hurt them as well because that steers him to a particular product that may not be the best for their medical necessity But certainly is the cheapest because they don’t have to pay anything out of pocket And it’s unfair to the taxpayer too because it doesn’t end around for the way the system is set up And you’ll notice I say the taxpayer as well as the government piece of taxpayers are a part of the government it’s their money and the taxpayer is the one that’s hurt by rising taxes when health care fraud and other scams go on Therefore it’s more important for courageous whistleblowers to come forward to balance out the system Going back to the Novartis case so you had the co-pay scheme going on and that was one very crystal violation that was going on and I’m sure it goes on in other capacities with other pharmaceutical companies And as always I encourage those individuals that have that information to step forward before somebody else does The next alleged scheme is what I like to call no-show jobs for doctors A lot of times the pharmaceutical companies will hold these events such as Going to the Bahamas where they have a conference and they pay the doctor to make a speech but there’s really no speech that goes on or they have a lavish dinner and they pay the doctor some speaking fee when in fact everybody is just out there drinking So what these are a ruse is the pharmaceutical companies paying a lot of money to a health care practitioner to try to buy their loyalty A brand loyalty so they keep coming back to that particular pharmaceutical company for the prescriptions and at the very least it certainly creates the appearance of a conflict of interest or the perception of one If a pharmaceutical company paid your doctor $10,000,000 a year and I’m not saying never do this with any particular doctor but if it a Kurd would you suspect that doctor is prescribing things to you for your best medical interests or could there be another motive Would you question why that doctor steered you towards that particular product versus a product that may be better for you from a rival company where that doctor isn’t receiving funds from There’s certainly going to be a perception of a conflict and perhaps an actual conflict And under the anti-kickback statute sometimes referred to as the a KS this was actionable this is a terrific result for the taxpayer terrific result for the government to terrific result for Aussie the whistleblower And we look forward to more of these cases coming forward There’s lots of different things going out there in the pharmaceutical world which we certainly need to discuss the next litigation which I’d like to discuss in an upcoming episode is the talcum powder ovarian cancer link I prophesize that that is close to resolution just as I had prophesized actors was close to resolution and round up was close to resolution it’s fitting the hallmark of a case that will be resolved although there’s no certainties or guarantees
Please. If you’re a potential whistleblower or have a potential legal matter, do not post things publicly contact us directly. Litigation is a very serious matter and if you’re thinking of blowing the whistle, you should consult with a whistleblower law firm that focuses on this particular area of law. Our firm would be happy to speak with you. We do offer free consultations, (877) 561-0000 but even if you don’t consult with our firm, look around and consult with a firm that really has a focus of its practice on whistle blower litigation. Thank you and have a great day.
Season 1, Episode 4
Whistleblower Information & Protection Podcast
Season 1, Episode 4 – Transcript
Welcome to another episode of the web the whistleblower information protection podcast with me your host Jason T Brown how did the firm brown LLC are from protects whistleblowers nationwide Today’s topic that I want to talk about is fraud under the PPP the payroll protection program a program designed in the time of Covid to keep workers working and yes essentially the purpose behind it is actionable under private rights of action by using the False Claims Act. The false claims act (FCA) is when an individual or an entity makes a false certification to the United States government and thereby defrauds the government out of money. There’s several ways this could occur.
I think today in the press to end July we had an individual who took money from the government that was supposedly designated and purposed for the employees and used it to buy a very nice Lamborghini but not nice enough because you can’t drive something like that in jail.
So The PPP at the inception of the program the employer has to certify that number one the funds are needed and number two it is going to be designated for certain purposes such as keeping employees employed. If you have information regarding an employer that has obtained a PPP loan but is not using it for its employees using it to buy Lamborghini and extravagant things that may very well be actionable under the false claims act. There’s also a whole set of criteria that is a condition precedent to an employer receiving PPP loans and that is that they have to give data regarding what their payroll was for the 12 months leading up to it if an employer falsified that would be pretty brazen because the government has that information at it’s disposal but that doesn’t mean much because the governments been sending checks to dead people left and right so the government doesn’t know what it doesn’t know. While it may take a while for it to catch up the concern about these PPP cases from my perspective of someone who does a lot of litigation in the false claims act arena is that a lot of these employers who may be unscrupulous enough to falsely designate and purpose the PPP loans for things along the lines like their own Lamborghini at the end of the day will not have enough money to pay the settlements and/or judgments against them but who knows because greedy people do things sometimes to accumulate wealth and only give breadcrumbs to others and at the end the day they may be able to be held accountable under the false claims act.
Breaking down the intersection between the PPP and the false claims act allows a relator, an individual who relates the claims of the government to file a case confidentially under seal and explain the fact pattern to the government, give the government the first bite of the apple whether or not it wants to investigate initially. If settled the case it handsomely rewards whistleblowers whistleblower awards who have this inside information who are courageous enough to come forward with up to 30% of what the government ultimately recovers so the whistleblower is very much incentivized to do the right thing. If you know of somebody who just recently received the PPP loans, a company or business entity and if they shouldn’t received it because they were ineligible for a reason or they’re not using it for employees instead they are using it for other purposes that are contrary to the statute please give us a call you can call some of the best whistleblower lawyers at 877-561-0000 to speak with our whistleblower department. Even if it’s not us are you think you should report it but you definitely want to go over what your options are first.
Season 1, Episode 5 (coming soon)