On April 16, 2020, the Honorable William M. McSwain, United States Attorney for the Eastern District of Pennsylvania, issued a sweeping request for help in identifying companies and individuals who seek to “exploit the devastating effects of the coronavirus pandemic for their own benefit.” The Philadelphia United States Attorney’s Office has a long history fighting fraud. This call for assistance in identifying coronavirus-related fraud schemes mirrors the pivotal role that whistleblowers will play following the unprecedented infusion of trillions of dollars of government funds into federal, state, and local governments to respond to the pandemic. More funds are being considered to be disbursed by Congress.
Insiders, those with key knowledge, are critical to combatting fraud, waste, and abuse. The federal False Claims Act (FCA), 31 U.S.C. § 3729, et seq, and similar statutes on the books in dozens of states around the country, and under some municipal codes, include qui tam, or whistleblower, provisions to encourage people or companies to come forward. Whistleblowers do not need to be individuals, and many companies have become whistleblowers. In addition, a whistleblower need not be a U.S. citizen.
The federal FCA and most state analogs provide whistleblowers the statutory right to bring a claim in the name of the government and receive 15% to 30% of any recovery. Whistleblowers are also protected from retaliation for their efforts. Strong anti-retaliation provisions under federal and state FCAs provide robust remedies, such as reinstatement, back pay, and double damages.
While a call for information may result in sharing information with local, state, and federal authorities, alone, it does not provide the statutory rights and protections afforded whistleblowers under federal or state FCAs. There are significant statutory requirements that need to be met to qualify as a whistleblower who may be entitled to a share of the recovery under the FCA.
There are government agencies and devoted prosecutorial professionals dedicated to enforcing the FCA, including for fraud related to COVID-19 (coronavirus). However, these government entities do not represent the interests of a potential whistleblower. As such, while whistleblowers are essential to supporting the endeavors of the government, to protect their own interests and facilitate the process, we recommend whistleblowers first seek competent counsel to assist them with their reporting.