Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

CNBC released a story yesterday about the qui tam provisions of the new Dodd-Frank Act, the financial reform law. They call the whistleblower provisions "little-noticed," indicating that we here at the National Whistleblowers Center (NWC) still need to do a better job of informing the media about new developments in whistleblower protection. 

In the article, NWC Executive Director Stephen M. Kohn tells CNBC, "If the law works, whistleblowers should be rewarded with millions of dollars. Those whistleblowers will save investors billions and billions of dollars." CNBC notes that the new provision could have helped whistleblowers like Harry Markopolos who tried in vein to get the Securities and Exchange Commission (SEC) to act against Bernard Madoff. If Dodd-Frank was in place then, Markopolos could have filed a qui tam claim, stopped Madoff's ponzi scam, and collected a portion of Madoff's ill-gotten gains. CNBC commented that NWC's seminar last Friday shows that lawyers are "chomping at the bit" for a share of the recoveries.

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On Friday, July 23, 2010, the National Whistleblower Center (NWC) hosted a seminar on the False Claims Act that included a special presentation on the Dodd-Frank Wall Street Reform and Consumer Protection Act that was recently signed into law. Stephen M. Kohn, Executive Director of the National Whistleblower Center, gave the presentation on the new financial regulations and whistleblower protections outlined in the new law. 

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FCA Legal Actions Could Result in BP Paying Treble Damages To United States Taxpayers

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The curriculum for our upcoming seminar titled “Integrating the False Claims Act into Your Law Practice” has been updated to include a presentation on the on the numerous whistleblower provisions contained in the new Dodd-Frank Wall Street Reform Act.

It is approved for CLE credit in Pennsylvania and Ohio for attorneys who choose to attend the seminar in our offices in Washington, D.C. Attorneys also have the option to attend via teleconference, but not for CLE credit.

Date: Friday, July 23, 2010
Time: 12:00 p.m. - 3:00 p.m. EST

To register for this seminar, click here. For more information, click here or call 202-342-1903. 

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Last month, we posted here our letter to the U.S. Department of Justice calling on them to exercise their power under the False Claims Act (FCA) to hold oil companies accountable for misleading the government and the American people about their ability to clean up oil spills. Today we received an answer. Assistant Attorney General Tony West has written to us to say, "that the Department of Justice is dedicated to recovering any losses it sustains as a result of the oil spill, and is considering all avenues for redress against the potentially responsible parties." Mr. West's letter goes on to express the Department's appreciation of the False Claims Act and the role whistleblowers play in helping the government recover funds fraudulently obtained:

The Deparment appreciates the important contributions of relators in assisting the United States to recover taxpayer funds under the False Claims Act's qui tam provisions. This public-private partnership has proved a successful tool for the recovery of public funds and for rewarding relators who bring allegations of fraud to the government. Indeed, since January 2009, more than $3.6 bilion was obtained under the Act's qui tam provisions, and relators were awarded more than $497 million for their efforts in helping the government pursue these recoveries.

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President Obama is scheduled to sign the Dodd-Frank Act tomorrow to enact the most significant reforms of our financial system in generations. Lawyers are already assessing some of those reforms, and we are focused on the new provisions for whistleblowers. My colleague, Lindsey Williams (Advocacy Director of the National Whistleblowers Center) already reported here on the substantive provisions of the new law. Yesterday the National Law Journal released an article with legal analysis of the whistleblower provisions. Management lawyers, including Richard Cassin of Singapore, are bemoaning the liability companies will face, and the change in incentives that will encourage insiders to become whistleblowers for the rewards provided by the new law. My friend Jason Zuckerman (pictured) of The Employment Law Group told the National Law Journal, "This new monetary reward program should encourage employees to blow the whistle and put more pressure on the SEC to conduct real investigations that would lead to appropriate accountability." He also expresses appreciation for the closure of loopholes in the Sarbanes-Oxley Act (SOX) and the False Claims Act (FCA). I do too.

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Last month, CNN's Special Investigations Unit released a story about Bobby Maxwell's experience as an inspector for the U.S. Department of Interior's Minerals Management Service (MMS). The main point of the story is how MMS was infused with a "culture of corruption," and its slipshod inspections missed opportunities to prevent the Deepwater Horizon explosion. The story also mentions that Maxwell is in the fifth year of a whistleblower lawsuit against Kerr-McGee. In that case, Maxwell won a $7.5 million dollar verdict against Kerr-McGee. After a judge threw out the verdict, he appealed. In 2008, the U.S. Court of Appeals for the Tenth Circuit agreed that Maxwell had a right to pursue his fraud case and reinstated the verdict. No doubt, Maxwell's status as a wistleblower, especially a whistleblower who has won his case, empowered him to speak out about the dangers of MMS' alignment with the oil companies instead of with the environment.  No doubt, Maxwell raised his concerns years ago, but no one was listening until 11 workers lost their lives and the ecology of the Gulf of Mexico was ruined by this disaster. Maxell's story makes obvious how we would all benefit from giving our federal employees strong whistleblower protections. To me, this is the reason why our Senators must scrap the poison pills in their current version of the Whistleblower Protection Enhancement Act (WPEA), S. 372, and adopt the strong House version, HR 1507. Follow this link for more information about helping environmental whistleblowers.

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Attorneys for the NWC submitted a letter to Attorney General Eric Holder calling for an investigation of BP and the entire oil industry, including contractors and subcontractors, for fraud committed against the U.S. government. The letter explains that the False Claims Act, the most powerful law available to deter fraud and enforce federal regulations, is the best legal to available to the Department of Justice to hold BP accountable for the full extent of their actions.

The letter outlines a number of the misrepresentations BP made to obtain authorization to drill at the Deepwater Horizon rig, and explains, "while the purpose of the False Claims Act is not to protect the environment per se, it is applicable in this case because it is intended to ensure honesty and openness when companies do business with and obtain benefits from the United States, such as a lease." (Read the full letter here).

This is a topic we have written about before, and we continue to advocate for whistleblower protections for oil industry employees. Members of the public can take action by sending letters to Congress supporting best practice whistleblower policies. Employees looking for legal advice can contact the Attorney Referral Service of the National Whistleblower Legal Defense & Education Fund.

The NWC press release is available here.

*Meryl Grenadier (NWC Fellow) drafted this post.

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Business Ethics magazine is reporting on the anticipation of corporate lawyers for more work in defending corruption cases.  In an article yesterday, Michael Connor writes about a whistleblower reward provision in the current draft of the financial reform bill. The bill would guarantee a reward of up to 30% for whistleblowers who provide original information about violations to the Securities and Exchange Commission (SEC). This reward program will be similar to the provisions of the False Claims Act (FCA) which brings billions of dollars back to the U.S. treasury every year through disclosures made by whistleblowers. (See page 9 of the linked report.) Connor says that if the financial reform bill passes with the current whistleblower provision, it would lead to increased detection of violations of the Foreign Corrupt Practices Act (FCPA) which provides penalties for U.S. companies that engage in bribery. Connor cites reports by corporate defense firms Morgan Lewis and Latham & Watkins indicating that the nature of enforcement is likely to change with the whistleblower reward.  Instead of raising disclosures internally, whistleblowers will be more likely to file disclosures with the SEC in hopes of securing a reward for the first to disclose original information.  Company managers are then more likely to learn about the allegation from the SEC rather than from a company hotline. The whistleblower could actually be competing with company management to see who can make the first disclosure and reap the statutory reward. One way company managers could keep whistleblowers reporting internally would be to demonstrate that company management will not tolerate any retaliation against whistleblowers. It would be nice of companies had such an incentive.

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I previously reported on how the Maryland Senate watered down its "Little FCA" bill so that lawsuits would not cost so much for the contractors who actually commit fraud against the State of Maryland. The amended version of SB 279 does not permit a court to require fraudsters to pay compensatory damages, and it prohibits whistleblowers from pursuing qui tam lawsuits unless the Maryland Attorney General chooses to intervene. It also makes the award of attorney fees discretionary. Now the Maryland House has concurred in the amended Senate bill.  While the new bill is better than having no False Claims Act (FCA), it is not good enough to give Maryland the millions of dollars it would receive from federal FCA cases if it had a full strength "Little FCA."

The House did beat back two amendments that would have either decimated or limited the Little FCA.  One, by Delage Shank, would have the State police fraud by contractors by hiring yet another contractor to audit the other contractors -- and would have erased all the qui tam provisions.  Another, by Delegate Tarrant, would have allowed whistleblower lawsuits only for those frauds committed after October 1, 2010 -- allowing fraudsters another six months to commit fraud without fear of this new liability. This Maryland web page will soon have links to the roll call votes so Maryland citizens can see if their delegates voted for this weak protection, or for no protection at all.

Perhaps now will be a good time to ask Maryland's legislators to plan for passage next year of a bill that will actually qualify Maryland for the millions it is missing if it had a whistleblower law strong enough to qualify for the federal Grassley Amendment.

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