Author Archives: Staff

As debate in the US continues over mandatory arbitration clauses that have led to private adjudications, a new film focuses attention on the use of private forums and sealed proceedings to resolve matters of potential public importance.

Spotlight, starring Michael Keaton, focuses on the team of investigative journalists from The Boston Globe who exposed sexual abuse by Roman Catholic priests. The movie takes its name from The Globe’s ‘Spotlight Team’ of investigative reporters.

As stories about investigative journalism go, Spotlight is not All the President’s Men. It is not so much about a team of reporters finding the facts on their own as it is a story about reporters struggling to pry the facts – and story – loose from attorneys who have settled their cases in private forums or who are litigating with key documents sealed by confidentiality orders.  In Spotlight, it is the lawyers who have put the facts and story together; but it is a story that they must keep to themselves.

In a line that explains the rationale for transparency of the judicial and legislative process, Justice Brandeis notes that sunshine is the best disinfectant. Court proceedings that seemingly involve only private interests may very well have public import. For example, cases alleging sexual harassment and employment discrimination, even when brought by a single plaintiff, may involve conduct that is pervasive and thus relevant to others who might muster the courage to step forward and vindicate their own rights. Matters litigated in the sunshine may cause private entities and government oversight bodies to take action to protect against prospective injury. But for the work of the Spotlight Team, the pervasive nature of egregious conduct would not have seen the light of day.

Public litigation in the United States has brought to the surface facts that make cars safer, workplaces more tolerable for protected classes and the air we breathe less dangerous to human health. It does not even take a court ruling or jury verdict to make the point – information that comes to light during the litigation process may fuel legislative oversight and/or regulation. This is not merely a collateral benefit; it is the way the system is supposed to work. And – as Spotlight reminds us – there is a real benefit to a transparent system of justice.

Reuben Guttman is a prominent trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

As a UK gas costs fall under the spotlight for alleged price-fixing, Reuben Guttman makes the case for whistleblowers.

NEW YORK – A revival of Ibsen’s 1882 play, An Enemy of the People, is currently running on Broadway.  The drama tells the story of a doctor who blows the whistle on a Norwegian town’s bathhouse because it draws contaminated water from a local tannery.

Ibsen does not use the modern expression ‘whistleblower’, but that term accurately describes the play’s protagonist, Dr. Stockman, the bathhouse medical director, who publicists the health hazard despite skepticism from townspeople, who, urged by the mayor and his allies, are led to believe all is well.

Dr. Stockman initially has the support of the local newspaper, which is prepared to publish his findings.  But the paper changes course after the mayor informs the publisher and the editor about the high cost of re-routing the bathhouse pipes and the revenue loss caused by the renovations.

Monopoly of truth

With economics placed over health, the paper declines to publish Dr. Stockman’s findings.  Rationalizing the decision, the publisher convinces himself that Dr. Stockman’s concerns are without merit.  He tells the mayor that the editor ‘is not such a fool as to go and ruin his paper and himself for such an imaginary grievance’.

At a town meeting, Dr. Stockman voices what he sees as a greater issue: ‘I propose to raise a revolution against the lie that the majority has the monopoly of truth,’ he proclaims.  But in the end, the townspeople declare Dr. Stockman ‘an enemy of the people’; he loses his job and his social status in the community.

Though written a century ago, Ibsen’s play provides insight into the mindset and plight of what could have been a 21^st-century whistleblower.  The playwright reminds us that, almost by definition, whistleblowers challenge accepted views or ways of doing business.  Deciding to raise a voice involves the balancing of moral obligations against the dangers of retaliation.  And, even where whistleblowers are correct in their views — or at least have bona fide reasons for airing them — they still may face retribution as their good names may be sullied by pre-textual attacks.

Bounties

In the US, there is some recognition of the value of whistleblowers in enforcing compliance with the rule of law.  To varying degrees, whistleblowers have played roles in exposing frauds from Enron to Madoff.

There is even a trend in the US towards legislating to allocate bounties to those whistleblowers that follow carefully regulated steps and provide information to government enforcement agencies.  The Federal False Claims Act pays bounties to those who bring suit in the name of the government against people or corporations that cause the misappropriation of federal government monies or property.  The Dodd Frank Act pays bounties to whistleblowers for reporting securities fraud to the Securities and Exchange Commission.  Even the Internal Revenue Service, which collects tax monies, doles out bounties to those who report tax cheats.  Under these laws, bounties are paid without regard to a whistleblower’s place of residence or even citizenship.

Snitches

I have often been asked when traveling abroad why Americans reward ‘snitches’.  Of course, I say that in the US we call them whistleblowers, a word that arose in the 1970s when consumer activist Ralph Nader demonstrated that individual citizens that speak up on matters, including safety in the automobile industry, serve an important social role.

Now, I can point them to a Norwegian playwright who recognized more than a century ago that challenging accepted ways — especially those that cause physical harm — is worthy practice, albeit one fraught with personal risk. Compensation for taking this risk seems just.