Whistleblower Law Collaborative Co-Founder Bob Thomas was one of the co-hosts of July 30 event featuring highly informative and lively discussion of DOJ enforcement priorities during the COVID Pandemic. The other co-hosts were Kirsten Mayer of Ropes & Gray and Patricia Peláez of Charles River Associates. The online discussion, sponsored by the American Bar Association, was attended by well over 200 attendees from both the public and private sectors.
The government participants discussing Covid enforcement included Jeffrey Sallet of the Federal Bureau of Investigation, Sara McLean of the DOJ, Daniel Fruchter of the U.S. Attorney’s Office for the Eastern District of Washington, and Gregg Shapiro of the U.S. Attorney’s Office for the District of Massachusetts.
The discussion began with insights into “what’s different?” about law enforcement during the time of COVID. Procedurally, courts are partially closed, meaning that criminal cases are being slowed and compassionate release petitions are on the rise, while civil cases are percolating along more steadily. With respect to government investigations, however, one problem identified was the difficulty in doing hostile interviews in a remote setting – virtually impossible. While friendly interviews can be done efficiently with remote technology, it is difficult to conduct an adverse interview remotely, thus slowing down some investigations. From the standpoint of the whistleblower attorney, Bob pointed out that this difficulty makes it even more important than normal for whistleblowers to provide their attorneys with corroborating documentation of their claims, materials that the government can evaluate without needing to conduct as many in-person interviews.
Substantively, while other crimes and areas of law enforcement interest are not taking any holidays, the Pandemic has generated two broad new areas of law enforcement interest: 1) new health care fraud cases relating to COVID-19, such as overbilling schemes, false claims relating to testing and vaccine development, and the like, and 2) false claims submitted with respect to the stimulus financial relief – either false applications for the funds or false certifications that the money had been spent as promised. The panel was very clear that both areas are already hot and generating a lot of interest on the part of law enforcement.
Bob Thomas stressed that the role of whistleblowers in this environment is critical to the success of law enforcement, which relies on whistleblowers for tips and leads on matters it would not otherwise learn of. (Roughly 90% of dollars collected by the government under the False Claims Act come from cases started by whistleblowers.) He pointed out that all the whistleblower programs represent a public-private partnership, which if it is to work effectively, should have open lines of communication between the two parties, and whistleblower attorneys screening their cases carefully to give the government the kinds of cases it wants to see and also avoiding overwhelming the government with incomplete or thinly-articulated cases.
When asked what steps employers could take to minimize the risk of getting in trouble in this environment, Bob’s advice was to take internal complaints seriously. Just because an employee’s complaint is unwelcome or irritating does not mean it is wrong. Many whistleblower complaints start from a former employee evaluating legal options after being terminated. Treating internal whistleblowers with retaliatory action creates a potential individual cause of action against the company but also motivates them to explore qui tam and other whistleblower options against the former employer which can be far more serious to the employer in the longer term. Many such scenarios can be avoided (and the potential liability managed better) if the internal complaints are handled with respect and seriousness.
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