Would You Blow the Whistle? Many Say Yes, but Perils Abound

Would you do it? If you knew your employer was defrauding the public or the government, would you go outside the company to stop the fraud? A new survey by a law firm found that most of us, 78 percent, would do it, “if it could be done anonymously, without retaliation and result in a monetary award.” The survey also found that one third of us knows about wrongdoing in our workplaces.

Or, as one seasoned whistleblower told me, “Most people would do the right thing if they thought they could get away with it.”And there is the rub: it isn't at all easy to succeed at “doing the right thing.” But that doesn't mean that we shouldn't try.

Right now, there has been a flurry of activity to strengthen or strip many of the whistleblower laws that are on the books.

The new survey, done by the law firm Labaton Sucharow, found other interesting statistics on the public's view of uncovering and reporting wrongdoing:

• 79 percent of respondents would encourage a loved one to report wrongdoing if he/she could do so anonymously, be protected from retaliation, and receive a monetary award;
• Women were more inclined to encourage a loved one to be a whistleblower (82 percent) than men (75 percent);
• 49 percent of respondents with annual household income between $75,000-$100,000 reported that they had observed, or had knowledge of, misconduct at work. Interestingly, this percentage dropped to 29 percent for those respondents with a household income above $100,000;
• 37 percent of White/Caucasian respondents said they have observed or had knowledge of wrongdoing in the workplace, while that figure dropped to 33 percent for Black/African-American respondents and 22 percent for Hispanic respondents;
• 83 percent of those surveyed between the ages of 45-54 would report misconduct if done anonymously, protected from retaliation and with monetary award. However, only 74 percent of respondents at an earlier age in their career, aged 18-34, would report, even with those protections;
• 68 percent of Americans surveyed are unaware of the new Securities and Exchange Commission (SEC) Whistleblower Program. There was an eight- point spread between men and women with respect to knowledge of the SEC's whistleblower program: 64 percent and 72 percent, respectively;

Jordan Thomas, the lead attorney for whistleblowers at Labaton Sucharow, used to be the assistant director in the SEC's Division of Enforcement and worked to get the new SEC whistleblower program passed as part of the Dodd-Frank financial reforms. (Yes, reformers also go through the revolving door using information learned in their government jobs. In this case, it was for the good of whistleblowers and reform.)

However, the revolving door can also, more likely, work against whistleblowing. Years ago in the 1980s, one of the attorneys I worked with in the Department of Justice's (DOJ) civil fraud division, Richard Sauber, took his in-depth inside government experience and knowledge and went to work for a law firm that helped government contractors beat Justice Department investigations. I distinctly remember the lunch where, as a DOJ attorney, he talked about making his mark by winning a big case but wanted me to deal with the whistleblowers because they were strange and a little off. He wanted my help in winning the “big case,” but I declined to work with him, knowing that, with his attitude toward whistleblowers and anonymous sources, he would use them and then throw them to the corporate wolves. Now, almost 30 years later, he is still a big partner at a law firm that protects wrongdoing government contractors, and I am sure that he has become quite rich winning the “big cases” that allows government contractors to continue to rip off the government.

Sauber also lists his accomplishments of developing ethics programs for government contractors. This is an old ploy to end-run government investigations and to encourage whistleblowers to stay inside the corporation. These ethics programs often morph into actual sting operations to find out potential whistleblowers in the company and retaliate against them before they have a chance to let the government know about the wrongdoing.

The most absurd case of corporate ethics programs was the one instituted by Sanford McDonnell, a member of the family who started McDonnell Douglas, an aerospace company and defense contractor. While McDonnell was chairman at the company in the 1980s, he instituted an ethics program when the company was being investigated for wrongdoing. He was also involved at the top levels of the Boy Scouts of America, and made a big media splash by framing McDonnell Douglas' ethics programs using Boy Scout laws. He flew all over the country touting the ethics program at his company and promoting his work with the Boy Scouts. However, his lofty mission of ethics crashed when Bob Adams, a reporter with the St. Louis Post-Dispatch, found that McDonnell had been illegally using the taxpayer reimbursed corporate jet to fly around the country on Boy Scout business. This story helped expose the deception – or downright absurdity – of these corporate ethics programs.

Corporate internal whistleblower programs, and even (wittingly or unwittingly) government hotlines, can become sting programs to find out who in the company has whistleblower tendencies and to make sure that person is retaliated against in such a way that no one wants to stick their head up again. It is hard to think about blowing the whistle when your livelihood, reputation and everything that you worked for can be gone and you can be blacklisted in your field. Many who consider blowing the whistle are not aware of these facts and find themselves in big trouble. Without protection and incentive programs that can give whistleblowers some financial security, many people who responded to Labaton Sucharow's survey would be in big trouble if they did as their consciences dictated.

But there have been programs that have helped whistleblowers succeed in exposing wrongdoing and getting refunds for the federal government. The granddaddy of these laws is the qui tam provision of the False Claims Act. Abraham Lincoln instituted this law in the 1860s to try to ward off defense contractors from selling bad equipment and sick horses during the Civil War. Lincoln literally deputized the average citizens by allowing them to sue on behalf of the government if they had direct knowledge of fraud, and the citizens (called relators) shared in a percentage of what was recovered by the government. If the government intervened in the case, the reward was usually lower than if the relators took the case through the courts themselves. However, if the government intervened, there was a much higher chance of a monetary recovery.

The qui tam provision of the act fell into disuse because modifications made it almost impossible to use. It was revived in the 1980s because of all the defense contractor fraud. The revised law has some of the strongest whistleblower legal protections in the federal government. I worked to get the reform of the law passed and then worked with whistleblowers and their attorneys to file successful cases to return over $200 million back to the government. When the law was first modified, the Reagan Justice Department under Attorney General William French Smith hated the law and unsuccessfully worked to have it declared unconstitutional. Since then, the law has been very successful, especially under the Obama administration. This year, the qui tam law has been responsible for almost $3 billion of money recovered for the government, and during the past three years of the Obama administration, a record $9 billion has been recovered. (Many don't know that President Obama, in his early legal career, did appellate work on a qui tam case on the side of the whistleblower and is probably the only president who uniquely understands the law and its potential to fight fraud.)

However, there has been a disturbing trend away from using the law on defense contractors. It use to be that the cases were mainly divided between defense and medical fraud, but this year, $2.2 billion of the $3 billion recovered has come from pharmaceutical company fraud. The Obama administration did give the DOJ special incentive money to seek out medical fraud because of the new health care reform, but there were other institutional and cultural reasons that defense contractors have gotten more of a free pass from this law. Qui tam attorneys, for the most part, work on contingency and pick cases carefully.

Unfortunately, defense fraud cases have been very hard to win or to get the government to intervene in, because it is in the Pentagon's culture to defend their contractors, even to the point of helping the contractors cover up fraud. This tight-knit group of military and civilian government contract managers and their defense contractors have been protecting each other for years. The revolving door in the Pentagon has so blurred the line between the DoD and its pet contractors that qui tam cases against the contractors are seen as treason to the whole system and the Pentagon personnel line up to protect their “brothers-in-arms” contractors.

So, the DOJ attorneys are reluctant to take these cases because they not only have to prevail against the defense contractors but also against deeply entrenched acquiescence by the Pentagon managers who don't want to admit any problems on their watch. One qui tam attorney told me that, when working on a DoD qui tam case, he wasn't so worried about what the company and its employees would say in court, but he was concerned that the DoD witnesses would back their contractors, even to the point of perjury. It has become much easier for qui tam attorneys and DOJ attorneys to go after the big pharmaceutical companies, known as Big Pharma, because these companies make so much money on the drugs that if they are caught in any fraud by the government, it takes merely a small fraction of their profits to pay the fines and then simply consider those fines part of the cost of doing business. The qui tam and DOJ attorneys, for the most part, also don't have to worry about government officials protecting and covering for Big Pharma because that industry, while great in influence-mongering on Capitol Hill, tends not to have bureaucrats so willing to fall on their sword for the companies.

This trend has been very frustrating and foreboding for potential qui tam DoD relators and whistleblowers in the DoD. Between the DoD's chaotic record-keeping and the institutional bias against going out of the military procurement “family,” it is harder and harder to make these cases or exposés against the defense contractors. This tendency reminds me of the famous quote by Admiral Rickover, the father of the nuclear navy, when he said, “If you must sin, sin against God, not the bureaucracy. God will forgive you, but the bureaucracy never will.”

The success of the qui tam law has led to similar laws being recently enacted in the IRS and the SEC. The SEC and IRS whistleblower laws also offer a percentage of the money recovered and have whistleblower protection. These new programs made up for the abysmal efforts by the IRS, and especially the SEC, to go after corporate wrongdoing in the past. But, as outlined in past Solutions columns, there has been movement by corporations, their friends in the Congress and government bureaucracy to gut these laws before they get started. Once laws like these lead to large monetary recoveries, it is harder to kill them or put in a poison pill. However there have been numerous attempts to kill or maim, by law or by regulation, each of the laws that whistleblowers can use to expose fraud and recover money for the government.

Right now, there is an attempt by the House of Representatives to wound the SEC whistleblower law just as it is starting to get cases. According to the Project on Government Oversight (POGO) blog:

Congress created these new programs as part of the Dodd-Frank financial reform legislation, recognizing that whistleblowers play a vital role in uncovering corporate fraud but are often reluctant to come forward due to fears of retaliation. Despite coming under significant pressure from industry groups seeking to gut these measures, the SEC and CFTC [Commodity Futures Trading Commission] approved regulations to provide significant incentives and protections to whistleblowers.

Having failed to gut these programs through the rule-making process, industry groups and their congressional allies are now trying to undo the original whistleblower provisions in Dodd-Frank. Yesterday, the House Financial Services Subcommittee on Capital Markets and Government Sponsored Enterprises gave law-breaking companies an early Christmas present by passing the “Whistleblower Improvement Act of 2011” (H.R. 2483), introduced by Rep. Michael Grimm (R-NY).

… Specifically, H.R. 2483 would require most whistleblowers to report problems internally to their employer before coming to the government in order to qualify for an award. It would require the SEC and CFTC to tip off companies under investigation before commencing an enforcement action based on a whistleblower tip. It would remove a provision that guaranteed a minimum award amount for tips leading to a successful enforcement action. And it would allow companies to force their employees into contractual agreements that would prevent them from reporting to the government.

So, what are some solutions to protect and promote whistleblowing against fraudulent government contractors?

• First, as the most recent attempts to gut these laws show, we need eternal vigilance by reformers, whistleblowers and good-government groups to stop the persistent efforts by industry – and, sometimes, the government bureaucracy – to gut these laws. That requires a lot of public education through the media and the Internet to encourage action when these powerful corporate lobbyists try to ruin the whistleblowers' chances of success. These companies cannot let whistleblowers succeed and bring them bad publicity, and they especially don't want these legal suits to become successful and cost them their ill-gotten gains from the government. Many of the good-government groups spend hours and hours investigating Byzantine rules and regulations to spot poison pills for whistleblower laws. They urge their followers to send letters and sign petitions. That exposure can, if readers react and help, push the corporate lobbyist, for a time, back into the bushes. If these laws are given the chance to be successful and return money back to the government, it becomes harder and harder for politicians to go along with gutting popular laws that save money.
• The Obama administration did a good job using the qui tam law, with special incentives in the DOJ, to put a dent into medical and Big Pharma fraud. The DoD fraud is more institutional, with sympathetic military and civilian bureaucrats protecting the contractors against investigation and scrutiny. To help change this culture, the administration should institute the same or larger incentives at the DOJ to pursue defense fraud. If a civilian or military manager insists on protecting a contractor against all evidence, the DOJ needs to be willing to put that manager in the lawsuit, as an individual and as one of the conspirators in the fraud. That person would not be protected as a government employee with a government-provided attorney because they are not allowed to “obligate the government beyond the rule and regulation of the government,” and acquiescing to fraud is an example of just that. I would imagine that those government employees would quickly abandon their protection of the contractors if they thought that they could be held personally liable.
• A bigger reform or solution has to be more of a cultural one. I was heartened to see that so many people would be willing to blow the whistle or encourage a friend to do so, but I don't think the general public understands just how hard it is on all aspects of a whistleblower's life, including livelihood and family life. It all sounds like a noble endeavor, but once you are in it, the corporation and the government can turns their fury towards that bearer of bad news. They work diligently to paint the whistleblower as unbalanced or crazy and usually succeed in making a whistleblower nervous and unsure whom to trust. There is a culture, in many corporations, of saying that the whistleblower threatens other employees' jobs to encourage them to see a whistleblower as disloyal, not a team player or a snitch. Until the media and the public sees that these whistleblowers are making big personal sacrifices – much like the troops at war – to make our government and other institutions better for us, there will be a reluctance for other whistleblowers or fence-sitters to step up to the challenge of making our government programs work for us.

Having had a chance to work with many whistleblowers over 30 years, I feel that I get to work with some of the best of us, people who are willing to make a sacrifice for the rest of us. Now we need to encourage our culture to support them and ensure that doing the right thing doesn't need to be such a sacrifice to the rest of their lives. The whistleblower laws are there for everyone (except federal government whistleblowers, and that is another column). We need to protect and enforce these laws and make them better for all of us.