What is the Biggest Mistake Whistleblowers Make? It’s very simple. They wait too long to consult a competent Whistleblower Attorney.
How does waiting too long adversely affect a Whistleblower’s chance of success? Here are 10 answers:
- 1. The statute of limitations may run out. Most Whistleblower lawsuits must be brought within a certain period of time or they are subject to automatic dismissal. For lawsuits brought under the qui tam provisions of the federal False Claims Act (FCA), that period of time is 6 years. And, the time period for retaliation claims under the FCA is 3 years.
- 2. The amount of the recovery, and therefore the size of any whistleblower reward, may be diminished. Even if the qui tam action is brought within the statute of limitations and thus survives a motion to dismiss, the size of the recovery will usually be limited by the amount of the government damages sustained during the non-time barred years.
- 3. Someone else may get the Whistleblower Reward. Most qui tam statutes have a “first to file” rule. If another whistleblower starts a similar lawsuit first, then you may end up being shut out of the reward.
- 4. The things you know about may become public. Most qui tam statutes have a “public disclosure bar” that could preclude you from pursuing your lawsuit, or at least make it harder to do so successfully, after there has been any type of public dissemination of the information you know about. This includes press and media coverage, Internet postings, public hearings, administrative audits, etc.
- 5. The government may learn of your allegations on its own and start an action without your assistance. Most of the time, once a criminal, civil or administrative government action begins a Whistleblower cannot recover a reward if he or she later provides related information and assistance.
- 6. If you wait until you’ve left the organization that is committing the misconduct or retaliating against you, you may have lost the opportunity to gather important documents, evidence and testimony. As a result, you may find it harder to present a compelling case to the government as it makes its decision about joining your lawsuit, and you will certainly lessen your value as a source or witness for the government’s attorneys and investigators. You likewise hurt your lawyer’s chance of winning any potential retaliation case.
- 7. You may not have the requisite specific “claim” details that are needed to survive a defendant’s challenge to your complaint under so-called Rule 9(b) and your case might get dismissed on that ground.
- 8. Your case will invariably be harder to prove if you are not still at the organization and as more time passes. Memories fade. Records get lost or destroyed. Witnesses move on. Your credibility lessens.
- 9. You don’t get to benefit from a lawyer’s advice as you face difficult and challenging issues that can likely affect your work and personal life.
- 10. The longer you wait the more difficult you will find it to retain a reputable whistleblower attorney to take your case. Most experienced attorneys take whistleblower cases on a “contingency basis,” where there is no fee unless the case is successful. Because of all the factors discussed above, experienced Whistleblower Attorneys and law firms are less willing to assume the increased risks for contingency arrangements on older cases.
What is the disadvantage of going to a competent whistleblower attorney very early on? That is also simple. None. Your communication with him or her will be confidential. You can decide to wait until you are ready to act. You can decide to simply provide your information anonymously and not seek a reward. Or, you can even choose to do nothing. Moreover, most experienced whistleblower lawyers and law firms typically do not charge a consultation fee. So why wait?
