VIDEO: Getting Started as a Whistleblower

People who think they’re witnessing corporate fraud undoubtedly have many questions and concerns. This video will help answer some of those initial questions, and you can easily and confidentially contact us if you believe you’ve witnessed fraud.

You’ll find information on the different types of fraud that we work with, including securities fraud, pharmaceutical fraud, medicare/medicaid fraud, defense contractor fraud, fraudulent loans and grants, and finally, federal government contractor fraud.

You can learn about the Federal and State False Claims Act, and can also read the laws.

We’ll provide you with insight into what it means to be a whistleblower. In the Getting Started section, we provide information on what the experience is like, what to do if you think you’ve witnessed corporate misconduct, how to select a whistleblower law firm, and what the process is like as you work with your whistleblower attorneys.

Finally, visit us often for information through a variety of resources in the form of News, Articles, and Frequently Asked Questions. Reuben Guttman, co-founder of Guttman, Buschner & Brooks PLLC, authors an active Blog with insight into current cases and laws.

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Thoughts on law in theory and reality

Sometime ago, a law student asked me whether law school adequately prepares students for the practice of law.

It seems that students study law and lawyers study fact patterns with an eye toward applying the law. The difference can be traced to the origin of the task: the law professor assigns a case to read presumably with a focus on teaching a rule of law, while the client presents a set of facts to which a lawyer must apply a rule of law.

Stick around long enough and the facts turn into repetitive patterns and the practice of law becomes a study in human nature, mistakes, challenges and ethical dilemmas. At some point the youngster carrying the casebook becomes a meld of psychologist and sociologist, a witness to the flaws, successes and conduct of government, private institutions, and people. Here are some observations:

In large corporations and those that run them, greed in its varying forms is a constant. It manifests itself in efforts to push the boundaries of the law, a calculation of the risk of being caught and, if caught, a colourable argument as to why the conduct fits within some loophole in the law. The argument need not necessarily be a logical extension of legal doctrine; it need only pose a hurdle for prosecutors, a bargaining chip if you will. Of course, ‘loophole’ is really a term used by non-lawyers to describe the law’s inability to clearly address fundamentally reprehensible conduct.

As for clients and witnesses, they seem to relish the comfort of being part of institutions. Our dog has the same level of comfort when she runs in to her dog house, where she’s protected on three sides. Yet, unlike the dog house, an institution can provide a false sense of comfort, as was the case with Enron, Tyco, and WorldCom. Employees who now face being laid-off at Turing Pharmaceutical are learning this lesson the hard way.

Institutions – as in large corporations – can also be manipulative. Think of the pharmaceutical sales representative who is unwittingly tasked with marketing drugs for unapproved purposes or the doctor who is flattered when paid to speak on behalf of a drug company, perhaps without being aware that the company is monitoring his or her prescription writing patterns and conducting return on investment analysis. Why question wrongdoing when a corporation has an internal compliance program? Surely anything bad would have been detected and abated? Not quite. Compliance programs exist in part to convince those within the institution that impropriety is not possible. The need to be accepted by the institution can also be a tide pushing against the questioning of impropriety, even when that impropriety is harmful to the employee. Think of the worker victimised by sexual harassment who continues to laud the employer. Think also of the employer tasking the marketing department to record a victimised employee’s promotion of the company as an evidentiary hedge against a potential claim.

Practice long enough and one learns that there is, as they say, always an elephant in the room. In Friedrichs v. California Teachers Association, the United States Supreme Court will soon determine whether the First Amendment is violated when employees are compelled to pay ‘agency fees’ to a public employee labour union. Yet, is this case really about the First Amendment, or curtailing the power of unions? Are cases compelling arbitration really about judicial efficiency, or protecting powerful business from public exposure for acts that impinge on safety and health? Think about it carefully and what may come into focus is the use of procedural rulings to impact substantive rights.

All of this is to say that the application and interpretation of law has context. Facts do matter and – to some degree – the application of law without regard to context is an exercise in futility. Of course, a legal education is the starting point to reach this conclusion. It just takes time.

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

What is a kickback?

Federal law makes it a felony to provide remuneration to someone to order or recommend a product or service paid for with federal health care dollars. It also makes it a felony to receive money for the purpose of recommending or ordering a product that is paid for with federal health care dollars. The law is known as the antikickback statute and it places drug companies, device manufacturers, doctors and even nurses within the orbit of liability.

Payments that do not appear on their face to be bribes may indeed be problematic. Consulting agreements, promotional speakers events, and even grants can violate  the law. Promotional speakers events are highly likely to violate the law.

Losing Opportunities to Recover Money for Worker Health and Welfare Funds

In settling False Claims Cases involving pharmaceutical industry misbranding and kickbacks, are State Attorney Generals leaving money on the table? The answer is maybe.

Most FCA settlements compensate for lost Medicaid and Medicare dollars. Left out of the mix are losses incurred by state and municipal health and welfare funds. Undoubtedly the money left on the table is not insignificant.

Why does this occur? One reason is that most state AG’s assign investigation of pharma fraud to Medicaid Fraud Control units. And larger investigations are coordinated among state AG’s through the National Association of Medicaid Fraud Control Units (NAMFCU). The result seems to be that no one is watching out for the interests of  public employee health and welfare funds at the state and federal level.

With public employee health and welfare funds strapped for cash and looking to meet rising drug costs, the oversight is not immaterial. It is an oversight that should raise questions from health and welfare fund trustees. Public employee unions which bargain for dollars to fund healthcare costs should pay particular attention. Where a municipal fund needs cash to make ends meet, the shortfall generally means that workers will get the short end of the stick when it comes time to negotiating a new labor agreement.

The Importance of Whistleblowers

Whistleblowers are of vital importance to regulators, helping them put the pieces of the jigsaw together, says Reuben Guttman.

Back in 2013, HSBC whistleblower, Herve Falciani, told the German publication Der Spiegel: “Banks such as HSBC have created a system for making themselves rich at the expense of society, by assisting in tax evasion and money laundering.” Conclosury statements like this are levied all the time by public interest groups, legislators, opinion writers and pundits.  When they are made, they are often a matter of speculation or at most, an argument of inferences from loose facts. Of course, Herve Falciani is different. When he left HSBC in 2008, he reportedly took data from 130,000 customers. He took the facts to allow authorities to make solid claims of tax evasion; claims that can only be effectively levied with inside information.

In a global economy with complex transactions, communications occurring in multiple languages and transactions and communications made with the jargon of the industry, it is extraordinarily complicated for outside regulators to investigate and gather the facts to prove complex fraud cases.  To some degree, it is analogous to a large ship attempting to navigate a harbor without a local captain available to explain where the rocks are or where the water is shallow. Or, perhaps it is like a blind person walking into a room for the first time without having any sense of where the furniture is located.

Of course regulators have the ability to access documents through a subpoena or civil and investigative demands, and they might even have the ability to ask questions under oath.  But which documents do the regulators ask for?  And when the questions are asked, how should the questions be worded so that regulators target the facts with the precision of a laser guided missile?   Imagine an investigator questioning an HSBC official: Question:“Have you aided and abetted foreign citizens in ways that allow them to avoid paying taxes?”  Answer: “No, that is not our mission … we are a bank.”

The problem is that most sophisticated lawbreakers understand the concept of a smoking gun.  Never create a document that summarizes the wrongdoing for regulators.  Never create a document that lays out the facts leading regulators to pinpoint the wrongdoing. And of course, in a large corporation, never create documents, rules, policies or plans that will cause the average employee to question the propriety of a corporation’s efforts. We live in an age where complex wrongdoing is orchestrated through communications and programmes which, if analysed independently, would seem harmless.

Yet, it is the whistleblower – the person inside the box – who can explain how patterns of innocent conduct, when linked together, amount to wrongful schemes involving fraud, money laundering, racketeering and tax evasion.  Whistleblowers like Falciani are so critically important to regulators and without their help, regulators face a daunting task of fully understanding the schemes and pinpointing and gathering the evidence to convince a trier effect that wrongful conduct has occurred.  Hence, “the importance of the whistleblower.”

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