On Friday, January 6th 2017, the National Whistleblower Center filed an Amicus Brief before the Tenth Circuit in Genberg v. Porter. The Genberg case deals with the definition of reasonable belief under the Sarbanes-Oxley Act (SOX). SOX requires whistleblowers to have a reasonable belief that a violation has happened or might happen in the future in order to be protected. Consequently, the standard for reasonable belief has wide-reaching consequences for whistleblowers reporting on corporate fraud and misconduct. The principal author of the brief, Stephen M. Kohn, writes about the case below:

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Today, the National Whistleblower Center (NWC) released its End-of-Year Report, filled with whistleblower successes from 2016.  In the past year, the NWC continued its mission to strengthen whistleblower protections and incentives, defend whistleblowers’ rights, and educate people at home and abroad about the power of whistleblowers in combatting fraud and corruption.

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Washington, D.C. December 6, 2016. An attempt by large government contractors and the U.S. Chamber of Commerce to undermine the False Claims Act (FCA) was beaten back by whistleblower advocates. The U.S. Supreme Court issued a unanimous decision today in the case of State Farm Fire and Casualty Company v. U.S. ex rel. Rigsby ruling that breaches to the confidentiality (or seal) provision of a case brought under the FCA will not result in an automatic dismissal of the case.
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The National Whistleblower Center (NWC) filed several amici curiae (friend of the court) briefs this year to support whistleblowers and advocate for their protection.  In particular, NWC briefs have addressed compelling legal issues including preventing attempts to weaken the False Claims Act (FCA) before the United States Supreme Court, and supporting whistleblower rights for veterans before the Federal Circuit Court.

The NWC wrote amici briefs in two major False Claims Act cases in 2016: Universal Health Services v. U.S. ex rel. Escobar, and State Farm Fire and Casualty Company v. U.S. ex rel. Rigsby. In Escobar, amici asserted that the FCA holds contractors liable not only when they defraud the government and taxpayers by violating express terms of their contract, but also when they violate implied certifications as well. In Rigsby, amici argued that the FCA’s seal provision was designed for the exclusive benefit of the Government, and mandatory dismissal for seal violations would undermine the FCA and hurt taxpayers—the intended beneficiaries of the False Claims Act.


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Ruling in Universal Health Services v. U.S. ex rel. Escobar will have major impact in government contract fraud cases.

Washington, D.C. April 19, 2016. The U.S. Supreme Court heard Oral Argument today in a landmark whistleblower case, Universal Health Services v. U.S. ex rel. Escobar, arising under the False Claims Act.  The Escobar case will determine how specific government contracts must be to hold fraudsters accountable.

At issue is whether a contractor violates the False Claims Act when it submits a claim for payment to the government by implying that it complied with all material terms of a contract or regulation when, in fact, it did not.  In this case, the defendant submitted claims for payment to Medicaid to compensate doctors even though no licensed doctors provided any services.


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The National Whistleblower Center recently filed an Amicus (friend of the court) brief in the case Universal Health Services v. U.S. ex rel. Escobar. The legal issue behind the case concerns the False Claims Act, America’s premier whistleblower law and its best defense against government contracting fraud. The question at hand asks whether a contractor can only be held liable for defrauding the government and the taxpayers if they violate the express terms of their contract, or if reasonable interpretations of the requirements can serve as the basis for enforcing against fraud as well.
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Yesterday, the National Whistleblower Center joined other groups in filing an amici curiae brief with the Department of Labor Administrative Review Board (ARB) in Powers v. Union Pacific Railroad Company, ARB Case No. 13-034.  Joining the NWC as amici are the National Employment Lawyers Association, the Truckers Justice Center and Teamsters for a Democratic Union.

The ARB called for amici to file briefs in the Powers case to consider the standard of proof for employees to establish the “contributing factor” test in whistleblower retaliation cases arising under the Sarbanes-Oxley Act  (SOX) and other whistleblower statutes.  The full ARB is considering whether an earlier 2-to-1 ARB panel decision in Fordham v. Fannie Mae, ARB No. 12-061 was correctly decided.  In Fordham, the ARB reversed and vacated an Administrative Law Judge’s recommended decision that had improperly weighed employer defenses in determining whether the employee had demonstrated her whistleblowing was a contributing factor in her termination.  
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The National Whistleblowers Center (NWC) joined with 24 other organizations to submit an amicus brief to the Fifth Circuit U.S. Court of Appeals. The D.R. Horton company has appealed a major decision of the National Labor Relations Board (NLRB) holding that employees have an inalienable right to bring collective and class action lawsuits.

At stake