What type of information makes a good whistleblower claim?

To present a strong whistleblower claim, information about the misconduct should generally be (1) nonpublic, (2) specific, and (3) detailed enough to answer every question raised by the relevant whistleblower law.

First, most programs require a whistleblower to provide information that is not already available to the government and the public more generally. If the news media or a government investigation has already uncovered information, it cannot be the basis of a whistleblower complaint, unless the whistleblower was the “original source” who initially disclosed it.

The bar on public information does not, however, prevent whistleblowers from providing new and undisclosed information about a previously reported event, such a where the whistleblower identifies a formerly unknown participant in an already-disclosed fraud.

Second, whistleblowers should offer specific evidence of misconduct – the “who, what, where, when, why, and how” of the misconduct. Specific details help the government gather the proof needed to prevail in a lawsuit. Without detailed information, the government may have difficulty investigating and confirming the allegations.

Third, the whistleblower should answer every question raised by the relevant law. For example, if a whistleblower wants to expose fraud on the government under the False Claims Act, she should provide information showing that the defendant not only filed improper claims, but also knew of or recklessly disregarded the impropriety. Similarly, whistleblowers under the SEC’s or CFTC’s programs should provide information demonstrating that the agency has jurisdiction over the relevant allegations.

Many different types of information can be nonpublic, specific, and sufficiently detailed to support a whistleblower claim. The whistleblower does not need to have personal knowledge of the underlying facts, and can instead rely on documentary evidence such as emails, text messages, billing records, audit results, or other types of internal evaluations.

To learn more about the False Claims Act and other whistleblower programs, go to www.mololamken.com and follow us on LinkedIn.  “Brilliant lawyers with courtroom savvy” — Benchmark Litigation.  Copyright MoloLamken LLP 2023.