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Digital Realty – Elevating Form Over Function to the Detriment of SEC Whistleblowers

The Supreme Court issued its opinion in Digital Realty Trust, Inc. v. Somers recently, holding that the anti-retaliation provisions of the Dodd-Frank Act and SEC rule 21F protect employees who report possible Securities Law violations internally only if they have also filed a Tip, Complaint, or Referral (“TCR”) report with the SEC whistleblower program.  In doing so, the Court elevated statutory text above the pragmatic concerns animating the statute and created what many employers will consider a perverse system.  Now even if an employee prefers to raise concerns internally, he or she must report them to the SEC to obtain protection against retaliation.


Dodd Frank Whistleblower Protections


The Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 929-Z, 124 Stat. 1376, 1871 (2010) (codified at 15 U.S.C. § 78o) included two distinct programs applicable to whistleblowers:

  1. A rewards program offering 10-30% of the SEC’s recovery to those who submit tips (“Reward Program”), see 15 U. S. C. § 78u-6(b)(1)(A-B)
  2. Protections against retaliation based on the whistleblower’s attempts to report her concerns (“Protections”), see 15 U. S. C. § 78u-6(h).

The Protections within Dodd-Frank are very broad and prohibit retaliation against whistleblowers who

  1. provide information to the SEC,
  2. who assist or testify in SEC investigations, and
  3. who report (even internally) suspected violations of securities laws or regulations

15 U. S. C. § 78u-6(h)(1)(A).

Broad whistleblower protections make sense.  Congress wanted to encourage people to report potential securities fraud and making sure they don’t get fired for doing the right thing is an important part of that.  However, in the section dealing with the Reward Program, Dodd-Frank defines “whistleblower” as an individual who provides the SEC with information relating to a securities violation[1]. 15 U. S. C. § 78u–6(a)(6).  This also makes sense in the context of the Rewards Program – rewards should be limited to people that actually give information to the SEC.


Are the Protections Limited To “Tipsters”?


As written, Dodd-Frank says that the Protections apply to whistleblowers, who fall within one of the three categories above.  15 U. S. C. §78u-6(h)(1)(A).  If you apply the restrictive definition of whistleblower from § 78u–6(a)(6), it would mean that the broad protections apply only to people who filed a tip with the SEC.  To put it simply, does Dodd-Frank protect you if you fall within one of the Whistleblower Protection categories, but you did not provide any information to the SEC? This was the situation presented in Digital Realty.  Paul Somers reported concerns about securities violations to his bosses but did not provide any information to the SEC and was fired for doing so.

In a unanimous decision, the Supreme Court concluded that Dodd-Frank did not protect Paul Somers because he’d never reported his concerns to the SEC. The Court decided that Congress had intended to limit its protections to “tipsters” to encourage reporting to the SEC.  Id. at 11.


Dangerous Implications for Digital Realty


The decision is plainly bad for whistleblowers, but the practical result is also bad for employers.  Under the Supreme Court’s interpretation, if an employee intends to report a suspected securities violation internally, or has done so and fears imminent retaliation, she should report some information under SEC’s TCR program so as to qualify as a “whistleblower” eligible for the Whistleblower Protections.

In an upcoming post, we will discuss ways in which the SEC might extend the Whistleblower Protections to all whistleblowers. But until SEC remedies the effects of Digital Realty, any individual contemplating even internal reporting of securities violations should seek experienced legal counsel to help them ensure they are protected to the fullest extent of the law.

[1] The SEC has further defined Whistleblowers to include only individuals that submit information according to the SEC TCR process.  17 CFR § 240.21F-2(a).

Really Expensive Food You Didn’t Know You Bought

By Robert M. Thomas, Jr.

How much can you spend on overpriced bananas?


Quite a bit, it turns out. Late last week the government announced a $344-million-dollar settlement in a case filed thirteen years ago under the False Claims Act (“FCA”) by a whistleblower alleging that Kuwaiti food contractor Agility was over-charging the military for fresh fruits and vegetables delivered to U.S. troops during the Iraq war. $344 million. I don’t know about you, but that seems like quite a food bill to me.


The case was brought under the FCA, as are many of the cases we bring at the Whistleblower Law Collaborative in Boston. One of the many interesting aspects of False Claims cases is their scale. Small discrepancies, or seemingly insignificant mark-ups, can in the context of large contracts, yield huge dollars in illegal profits. Yes, even for fruit and vegetables. In the Agility case, the $344 million was $95 million in damages, plus another $249 million in claims submitted that the company agreed to withdraw as inappropriately charged.


In a normal transaction, a 5% mistake, say an extra $2.50 on a $50 dinner bill, is negligible. Depending on one’s attentiveness or neurosis about money, one might choose to ignore it rather than going back to the restaurant to complain or ask for the money back.


However, when you add a bunch of zeroes to the number, things start to look different. A 5% fraud rate on a $100 million contract is $5 million in single damages (but could be trebled to $15 million under the FCA). A 5% fraud rate on a $1 billion contract is $50 million, before possibly being trebled. The Iraq War cost several trillion dollars all told. You start to see the nature of the problem.


Similarly, during the “Big Dig” highway project here in Boston a few years ago, where the feds agreed to underwrite the sinking of an interstate highway below the city’s streets, the price tag evolved from one billion to two, and then seven, ten, eventually fourteen. How does that happen? The steady drip, drip, drip of contract amendments, change orders, and the like, and next thing you know the taxpayers are paying fourteen times what was agreed to. Whistleblowers eventually came forward (towards the end of the project) to explain the mischief in the project’s finances, which had ballooned out of control.


Another source of FCA fraud cases on an enormous scale is the government health insurance programs, such as Medicaid and Medicare. These are a huge problem for much the same reason (a 90% compliance rate in a trillion-dollar health care economy translates into a $100 billion per year problem). Health care fraud cases constitute the majority of our FCA cases at the Whistleblower Law Collaborative. Why are these so prevalent? Because federal reimbursement systems are largely based on a type of honor code: the systems allow the contractor to submit claims electronically, and coding manipulations can be hard to detect in the absence of a witness coming forward to help the government see what it cannot see on its own. The government typically pays the claims and chases the bad ones after the money’s been paid out, the so-called “pay-n-chase” model. For people and entities willing to engage in gamesmanship, it’s a lucrative game to manipulate these vulnerable honor systems. Whistleblowers have become the government’s primary weapon for making the lucrative game more risky — and for recovering the money wrongfully obtained.


False Claims Act cases can arise in any number of situations in which the government spends money. The Pentagon’s massive expenditures are certainly fertile ground. As documented in L.A. Times reporter Chris Miller’s 2007 book, Blood Money: Wasted Billions, Lost Lives, and Corporate Greed in Iraq, huge sums of money were lost and fraudulently spent in the Iraq War, as the price of that conflict (originally touted as a self-funding enterprise costing the taxpayers nothing) ballooned into the trillions of dollars and turning a national surplus into a national deficit. As whistleblower lawyers, the frustrating aspect of that situation was knowing that fraud existed but that it would be incredibly hard to get to the facts in sufficient detail to bring legal action. Very little paper existed for the contracts and sub-contracts; witnesses were in Iraq and throughout the Middle East. Traveling to those areas for fact-finding was almost impossible and would involve prohibitively expensive security details and the like. Because of this, the Iraq conflict became known among whistleblower lawyers as a “Free Fraud Zone.”


The money flowed and flowed in Iraq, but the whistleblower cases did not come, at least not right away. Just like the Big Dig, towards the end of the conflict when things had quieted down somewhat, people began to surface to make claims against defense contractors like Blackwater and Halliburton for a variety of over-charging schemes. And thirteen years after it was first filed, the Agility case shows that the money stolen in that conflict is still being recovered.


Taxpayers bear the brunt of these schemes. Whether it’s a city tunnel that cost fourteen times what was originally projected, or up-coded medical bills, or the most expensive bananas in the history of the world, you and I are stuck with the bill.


About the author: Bob Thomas is a Boston-based attorney and a principal in the Whistleblower Law Collaborative, whose work is the representation of whistleblowers. In addition to his work on behalf of whistleblowers, Bob is a board member of the ACLU of Massachusetts and an adjunct professor of law at Boston University, where he teaches a course on Health Care Fraud and Abuse.


“See Something, Say Something” Applies to Health Care Fraud Fight Too

Since 9/11 we have all become used to the expression “see something, say something” as a way to perform our civic duty and protect our fellow citizens and our country from terrorism. What if we applied this to our country’s fight against health care fraud too? That is what whistleblowers do. They are the ones who see something, and have the courage to say something.  Health care fraud is a problem that is costing the taxpayers billions of dollars in fraud every year and compromising the quality of care patients receive. In short, it hurts us all. Three recent settlements in Florida remind us how important it is for whistleblowers on the front lines of health care to come forward.


One settlement involved Rose Radiology Centers in Tampa, Florida where the types of health care fraud ran the gamut. Among other things, the Centers performed and billed for medically unnecessary tests, paid kickbacks to other doctors to get business, and allowed unauthorized persons, who were not doctors and who were not supervised by doctors, perform which had the potential for life threatening side effects.


The other two settlements involved the national operations of a large cancer provider (21st Century Oncology) and one of its doctors in Naples, Florida. The government alleged they were performing medically unnecessary for fluorescence in situ hybridization, or “FISH,” tests supposedly to diagnose bladder cancer. The government also alleged that the company encouraged the doctors to order such tests  by offering them bonuses that were based in part on the number of tests referred to 21st Century’s laboratory.  See also recent DOJ press release.


While these are not the hundred million dollar or more “blockbuster” cases that garner headlines, they are just as important. The whistleblowers were concerned with what they witnessed and took action. We applaud them for saying something when they saw something.


On Wednesday, the New York Times ran a story on a courageous lawyer fighting an important case.  Although it’s not a whistleblower case per se, it resonated so fully with the nature of what we do here at the Whistleblower Law Collaborative that I felt compelled to submit a comment.


The story is about an attorney name Rob Bilott who is representing plaintiffs in several environmental lawsuits against chemical giant DuPont, for having dumped toxic chemicals into the groundwater and streams of Parkersburg, West Virginia, suppressed what they knew about the problem, and misled plaintiffs and regulators about the seriousness of the problem with bogus expert analysis blaming the problem on others.  Similar to the stories of Erin Brockovich or Jan Schlichtmann in A Civil Action, it is the tale of the underdog taking on powerful corporate interests, over decades, and obtaining some measure of justice in environmental contamination suits, against improbable odds.  (Another great environmental true story in film is Semper Fi, the documentary of the U.S. Marine Corps’ contamination of the ground-water at Camp LeJeune, North Carolina, the cancer clusters that resulted, the Marine Corps’ refusal for years to acknowledge the problem or support the veterans who got cancer as a result, and the courageous folks who brought the story to light as the Marine Corps stonewalled).


Before I was a whistleblower attorney, I was a white collar fraud prosecutor at the U.S. Attorney’s Office in Baltimore, Maryland, where I worked on as many environmental cases as I could get my hands on.  We brought cases against developers who destroyed wetlands, utility companies who failed to contain flyash runoff, and even one controversial criminal case against high-ranking military officers from a U.S. Army Base in Aberdeen, Maryland for dumping toxic wastes into the local streams for decades.  We took a lot of heat for bringing these cases — the Wall Street Journal even called us the “Eco-Gestapo” at one point — but they were vitally important.  These cases stood for the notion that people have to be held accountable for these kinds of quiet crimes that affect everyone.


In a way, the heat we took was nothing compared to what plaintiff’s attorneys in small firms face in these private civil cases going up against corporate fraud.  We at least in theory had the U.S. Government standing behind us, and agents with badges and guns to help level the playing field.  It’s even tougher when you stand out there on your own without a net.  Tough, but necessary.

Powerful interests get used to the notion that rules that apply to “ordinary criminals” don’t apply — or shouldn’t apply — to them.  They take exception to the notion that some lawyer — some young prosecutor, some whistleblower attorney — is going to put their conduct on display for all to see.  They deny; they delay; they try to bury you in paper and motions and appeals.  So it takes guts like Rob Bilott’s guts to stand up to these powerful interests and stay committed to the proposition that we won’t stop until there is a measure of real justice at the end of the story.  Justice for one’s clients, and justice for the public who needs to know about these silent crimes going on around us and in our bodies.


So we’re proud to be on the side of whistleblowers and plaintiffs, proud to be part of the effort to level the playing field and provide transparency to a public that needs to know.  It’s not just fighting the good fight.  It’s fighting the necessary fight.  Without people of courage, just where exactly would we be?

Taxpayers Against Fraud Education Fund Conference

The 15th annual TAFEF Conference held this week in Washington, D.C. did not disappoint: timely topics; informative panel discussions by whistleblowers, law enforcement and agency personnel, and whistleblower and government attorneys; inspiring speeches by Ralph Nader and Senator Charles Grassley; humbling stories of the many sacrifices made by whistleblowers; updates on the success of the False Claims Act in returning billions of dollars to the U.S. Treasury (also known as the taxpayers); sober reminders of the work still to be done to defend and strengthen whistleblower laws and protections; and a chance to mingle with our colleagues from around the country.


The bipartisan support for our work is demonstrated by the appearance at the conference of Ralph Nader on the one hand, and Senator Grassley (R-IA), on the other. Nader, the father of the term “whistleblowing,” and Grassley, the father of the modern False Claims Act, both recognize that the private citizen as whistleblower and as whistleblower attorney is key to efforts to protect the public fisc, hold fraudsters accountable, and protect public health and safety.


We came away energized to continue to fight the good fight and hope you are too!

Mind the Seal or Face Dismissal

The False Claims Act contains many procedural nuances that a lawyer and a whistleblower must be mindful of when filing a FCA whistleblower or qui tam complaint. One of the most important is that the complaint filed with the court must be filed under seal and must remain under seal for at least 60 days. Indeed, it often is under seal much longer as the government may move to extend the initial seal period for “good cause” shown.  Among other things, this seal period enables the government to investigate the allegations without alerting the defendant to the investigation. For example, the government may wish to undertake a covert investigation using consensual monitoring or may wish to execute a search warrant or a subpoena for documents without the defendant having an opportunity to destroy evidence.


While the FCA does not say what the consequence is when a lawyer or  whistleblower violates the seal requirement, some courts have concluded that the consequence can be dismissal of the complaint with prejudice. If the case is so dismissed, the whistleblower is deprived of any share of any government recovery under the FCA.  Earlier this month, the United States Court of Appeals for the Fourth Circuit refused to adopt a blanket rule of dismissal, holding that a lower court federal judge wrongfully dismissed with prejudice whistleblower Brian K. Smith’s suit against Clark Construction Group LLC and its Shirley Contracting Company LLC subsidiary even though his attorney had violated a statutory 60-day non-disclosure period by telling the defendants of the lawsuit within that time. See opinion at pp. 7-11.


The Fourth Circuit looked to see what, if any, purpose of the seal or the government’s investigation was harmed by the breach of the seal. If the seal breach “incurably frustrated” the purpose(s) of the FCA seal provision, then dismissal would be warranted.  Id. at p. 10. The Court adopted the reasoning of the United States Court of Appeals for the Second Circuit, which differs from the approach of the Sixth Circuit (blanket dismissal rule) and the Ninth Circuit (a “no harm, no foul” balancing test). Id. at pp. 9-10. Reasoning that the seal period is intended to give federal investigators time to examine the allegations, prevent the alleged fraudster from being alerted to the investigation and protect the company’s reputation by ensuring mere allegations of fraud by a private citizen are not disclosed in advance of the government’s finding, and that in this case, none of these goals was placed at risk by the premature disclosure, the Fourth Circuit overturned the dismissal order.


While the whistleblower and his counsel dodged a bullet in this case, the Court made it clear that it did not condone the premature disclosure and that doing so is risky business: “We in no way minimize the significance of the violation in this case: By directly informing the defendants of Smith’s qui tam [False Claims Act] claim, Smith’s attorney risked serious interference with the government’s opportunity to investigate the alleged fraud. That risk appears not to have materialized in this case. But such disclosures have the potential to frustrate the purposes of the seal provision in a way that merits dismissal with prejudice, and qui tam claimants are well advised to comply strictly with the FCA’s seal requirements.” Id. at pp. 11-12  n. 3 (emphasis added).

So Who’s a Whistleblower, Anyway?

Today is National Whistleblower Appreciation Day.  We all remember the media frenzy surrounding Edward Snowden’s revelation that he was the source of leaks about the National Security Agency’s domestic surveillance activities.  This day raised the question who is really entitled to use the term “whistleblower.”   It’s a question we get a lot as we screen qui tam or other inquiries and guide people through the difficult decision-making process of whether to come forward or not.  So it’s a question about which we have some interest.


There are, it turns out, many different types of whistleblowers, and the term is used generically to describe someone who is coming forward to alert authorities or the media of a problem that is not widely known or understood – and where the individual coming forward feels there’s a need for people to know, even if it there is risk involved.   People can think of themselves as whistleblowers in a variety of contexts such as sexual harassment in the workplace, government being less than truthful about what it is doing, and with respect to corporate misconduct of almost any form.  I am reminded of a New Yorker cartoon some time ago, where a child sees her brother with his hands in the cookie jar and threatens to tell Mom.  “Tattle-Tale!” the brother scolds.  “I prefer whistleblower,” the sister replies.  So the term has many, many uses.


The important thing to remember when you hear the term is the context.  There are now dozens of state and federal statutes that protect “relators” or “informants,” or “whistleblowers.”   These are usually linked to specifically-defined forms of “protected activity,” which might include filing a qui tam complaint in a False Claims Act case, or submitting a tip to the SEC’s whistleblower program dealing with securities fraud, or filing a whistleblower claim to the IRS.  Many of these statutes protect the whistleblower’s identity indefinitely or permanently – a far cry from Mr. Snowden coming forward to say “I’m the leak and here’s why I did it.”


So when you hear the term, it’s good to remember that not all whistleblowers are alike, and not every whistleblower statute is alike.  Some may protect you more than others.  This is why we’re in the business – to help people navigate these tricky waters – whatever name they choose to describe themselves.

You Call It Theft; I Call It Evidence

One of the trickier issues in representing whistleblowers is the question of documents.  In virtually every case, the client comes to us with documents to support his or her claim.  Many of these come from the company  that we may sue under the False Claims Act.  The delicate question is how, if at all, may we use these documents in our case, given that the company will undoubtedly say they are the company’s property improperly taken from the premises.


We’ve written on this issue before.  While there is not total uniformity in the courts’ evaluation of this issue, there is some general guidance.  First, assuming the whistleblower doesn’t go overboard (more on that below), the statutory duty to tell the government everything he or she knows about the fraud will outrank, in most judge’s eyes, the defendant’s cries of foul about certain documents being copied and taken off site.


But the devil’s in the details.  Whistleblowers can buy a lot of trouble for themselves and their attorneys if they get carried away.  One obviously delicate area is attorney-client privilege.  There may be attorney-client communications within the company that are highly probative of the company’s intent and its knowledge of wrong-doing.  But those documents may not be admissible, and worse, their disclosure may “taint” not only the whistleblower attorney but the government prosecutors themselves.  So it’s essential that any such documents be identified early and carefully to ensure proper handling to avoid later claims of taint.


In addition, courts are generally sympathetic to whistleblowers if the documents copied are the kind of documents the witness typically saw during the course of his/her employment.  Conversely, courts are generally unsympathetic to witnesses who go searching through company data bases looking for evidence, and looking in places their work would normally not take them.  See generally Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010).


We take a lot of care to get this issue right, and the government prosecutors have often thanked us for not dumping an unwanted surprise on them.


Think this is just an obscure academic hypothetical?  Try on this cautionary tale from a recent New Jersey case:


“The New Jersey Supreme Court on Tuesday preserved criminal charges against a former school board worker accused of taking confidential records for her discrimination and whistleblower lawsuit, a decision that could put plaintiffs attorneys in the perilous position of weighing disclosure requirements against potentially exposing their clients to prosecution.


A 6-1 majority of the court found sufficient support for an indictment accusing former North Bergen Board of Education employee Ivonne Saavedra of official misconduct and theft by unlawful taking of public documents.”


The case is State v. Saavedra, case number 073793, in the Supreme Court of the State of New Jersey.


Indictment?  Yes, as in criminal case your-liberty-is-at-stake indictment.  Seems the local prosecutors thought poorly of the whistleblower’s decision to take certain private student records out of the files.  (Not clear whether they were removed entirely or just copied, an issue that can be material.)  This criminal case is perhaps the far extreme of how bad things can get if a witness gets a little too enthusiastic in the evidence-gathering department.


It remains to be seen whether this person will be convicted.  But the case provides a cautionary tale about the need to follow the rules and get some guidance from experienced practitioners.  There are ways to stay out of trouble in this arena, and ways to get yourself in trouble.   Same is true for the attorneys representing whistleblowers:  fail to be careful in the handling of the documents, and you, too, can be facing disqualification or worse.


None of this means whistleblowers should think they can’t copy documents.  They do it every day, and the government would be surprised if the witness came in with no documents from the company.  But there’s a way to do it right, and doing it right will greatly increase your chances of success.

More Agency Transparency Is A Good Thing For Everyone

Yesterday the Food and Drug Administration (“FDA”) announced that it is making an important set of data about “adverse events” public for the first time.  This is excellent development for anyone who cares about good outcomes in the health care system.  The decision follows on the heels of the decision by the Center for Medicare and Medicaid Services (“CMS”) to make large portions of the Medicare claims data base public. Taken together, these two agency decisions will provide far greater insight for the public (and for anti-fraud attorneys like us) in what’s going on behind the curtains at drug companies and at federal agencies.


The FDA’s new “Open FDA project” is designed to be a user-friendly web portal that allows investigators and consumers to research adverse events that have occurred and been reported to FDA after a drug or device has been on the market.  (Manufacturers are encouraged but not required to report adverse events to the agency for general oversight purposes, which can in some cases lead to a drug or device’s recall.)  You can search the data base by drug, by illness or disease state, and by type of reaction or outcome.


As whistleblower lawyers, of course this is hugely helpful, because an understanding of whether, for example, a company’s promotion of off-label uses of a drug or device has actually caused harm to patients is a critical component of the government’s evaluation of such a claim.  By being able to look into the (admittedly imperfect) data base of adverse events, investigators can get at least an impressionistic look at the kinds of outcomes have been reported in the off-label arena.  Beyond our professional realm, this development is great for doctors and patients as well.  If you as a patient were to be recommended a risky new therapy by a physician, wouldn’t it be a good thing to be able to surf around this data base to see what had been reported?  Or to be able to ask your doctor why she’s recommending this therapy despite all these adverse events that have been reported?


Bravo FDA and CMS.  Let the sunshine in.  It can lead only to better decisions by patients, doctors, and investigators.

Got the Guts to Be a Whistleblower?

The World Bank recently released the results of an internal study which suggests that 46% of respondents lacked confidence that they could report unethical conduct “without fear of reprisal.”  Assuming the sample size is a fair cross section of all employees, that’s a pretty staggering number.  Half of an organization’s employees think that speaking up about something improper will get you in trouble, or worse still, will cost you your job?


What this suggests – or confirms – is that levels of trust in large institutional settings are low indeed.  Large hierarchical employment structures (the basic model we’ve been using since the Industrial Age) are based on power relationships.  Someone is the boss, and the boss runs the show.  The power to fire, the power to shame, the power to ostracize all too often lead to silence in the lower ranks.  Why speak up if the boss might misconstrue your intentions?   The need to survive, and the need to remain included in the work group of peers, run deep.   The larger and more hierarchical the organization, the more work it takes for managers to overcome these basic fears on the part of employees – the fear that truth-telling will cost you dearly.


The same World Bank study also claims that the 46% figure is “31 points below an external benchmark set for private enterprises such as Goldman Sachs” and other financial institutions.  Say what?  Big corporations can boast that 85% of their workforces feel free to report fraud or misconduct to superiors?  We doubt it.  More likely this is just the World Bank’s way of telling itself that it needs to do better.


The real questions are:  Is the 46% number at all surprising?  And do we think that we’d see similar numbers across industries, and in for-profit, not-for-profit, and government sectors?


No, it’s not surprising  to us.  And we strongly suspect that if similar studies were conducted across all sectors, you’d see similar results.  We often see potential clients who tell us their tales of trying to do the right thing within their organization and being shot down.  We see others who are simply too afraid to go that route and want some advice before doing so.


Even in institutions where management is serious about compliance, the reality is still clear:  there will always be career-altering choices that employees face when deciding to report fraud, abuse, or unethical behavior on the part of higher ups, particularly if it involves the employee’s immediate supervisor.  What the 46% number reflects is nothing more than a good understanding of human nature:  the same people who push the envelope in their business affairs may not be the most upstanding in dealing with whistleblower complaints.  Revenge  as well as the instinct for self-preservation, remains deeply embedded in the human psyche.   It takes an enlightened mind not to keep score of those who have crossed you  or to see that in the long run it will benefit you to behave ethically; it takes a particularly enlightened mind to forgive and accept rather than punish.  As we know, the people who get to the top are not always enlightened (there are of course some wonderful exceptions to this statement).  Sometimes they may simply be smart, or aggressive, or relentless, or single-minded.  And with corporations having a statutory duty to maximize shareholder value, it’s all too easy to see a whistleblower as a problem rather than a cure.   It’s easier to make the messenger disappear than to address the problem, particularly if addressing the problem is going to eat into short-term profits or other management metrics.


This is why Congress has passed anti-retaliation provisions in the False Claims Act and many other whistleblower statutes.  Because these problems are systemic.  And they reflect the darker side of human nature.


And this is why we are whistleblower lawyers.  Because it takes courage to stick your neck out and risk your career for the greater good.   Representing people who have done the hard, soul-searching work to sort through the conflicting values that their lives and careers have presented is an honor for us.  We routinely tell prospective clients “you don’t have to do this.”  And we salute the ones who go forward anyway.


The milk industry has a catchy advertising slogan, with local heroes sporting milk moustaches and the phrase “Got Milk?”   Maybe our profession should have an ad that says:    “Got Guts?”