Kirby McInerney LLP | Whistleblower Practice | Whistleblower FAQs
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Whistleblower FAQs

The whistleblower process can be complex, and there is no substitute for contacting experienced counsel to discuss your situation. Here, we address in a general way some of the most frequently asked questions about being a whistleblower.

* These “Frequently Asked Questions” are provided by Kirby McInerney LLP for educational and informational purposes only and is not intended and should not be construed as legal advice.

  • Anyone with reliable, useful information about fraud committed against the government or investors might be a whistleblower. Whistleblowers can be insiders or outsiders, and high executives or entry-level employees. What matters most is the quality of their information. Kirby McInerney’s whistleblower team can evaluate your claim and help you decide whether to file a whistleblower claim.
  • Kirby McInerney is experienced in each of the primary programs available to whistleblowers: (1) the federal and state False Claims Acts, which allow whistleblowers to file lawsuits on behalf of the government to seek recoveries from frauds committed against the government; (2) the IRS whistleblower program, which allows whistleblowers to report federal tax violations, including non-fraudulent underpayments; (3) the SEC whistleblower program, which allows whistleblowers to report violations of the securities laws; and (4) the CFTC whistleblower program, which relates to reporting violations of the Commodity Exchange Act.
  • There are two main avenues to report tax violations.  For federal tax violations, a whistleblower can file a claim with the IRS whistleblower program. Those claims can be about any type of federal tax violation, in any amount, even if the violations were made by mistake.  Some states and the District of Columbia allow tax frauds to be raised under their False Claims Acts.  New York State’s False Claims Act allows whistleblowers to bring claims about large tax frauds that have harmed the state or local governments in New York.  Washington DC allows similar claims.  Illinois’ False Claims Act allows claims about sales tax and some other tax violations. Several other states also permit tax whistleblower cases.
  • You should discuss with counsel the pros and cons of being a whistleblower in light of the claims you wish to raise. Some items to consider are the strength and value of the claims, the extent to which the available whistleblower programs allow for your anonymity, any involvement you may have had in the misconduct, the length of time the claims may be pending, and the potential for retaliation.
  • The best whistleblower claims lay out reliable evidence that demonstrates the defendant’s liability. While that evidence will be different in each case, you should put yourself in the shoes of a government investigator and ask how you would use the evidence you have and how you would collect additional evidence to win the case. You should discuss your claims with experienced counsel to evaluate their strength.
  • You should move quickly to find out if you have a good whistleblower claim. Most claims are subject to statutes of limitations, some of which are quite short. You should consult with experienced counsel right away to discuss which whistleblower programs might apply and what the timing considerations are.
  • You should speak to experienced counsel about the claims before disclosing them to anyone else. Several whistleblower programs have rules limiting claims that were publicly disclosed before the whistleblower submissions are made, and some have rules about maintaining the confidentiality of the claims once they are filed.
  • Generally, a whistleblower whose claim is successful can receive an award of between 15% to 30% of the government’s or investors’ monetary recovery as a result of the claims. Note that there are some variations in the percentage awards in different whistleblower programs.
  • Under the False Claims Act, a whistleblower can proceed with claims that the government declines. If successful, the whistleblower will generally receive an award of between 25% and 30% of the government’s monetary recovery (as compared to an award of 15% to 25% where the government intervenes). The other major whistleblower programs do not allow for the whistleblower to continue a case that the government chooses not to pursue.
  • The answer depends on which whistleblower program you are in. The SEC and CFTC whistleblower programs allow whistleblowers represented by counsel to submit claims without disclosing their names, and the programs promise a high degree of confidentiality even when the whistleblower’s name is disclosed. The IRS whistleblower program requires that the whistleblower be identified to the IRS, but the IRS also promises a high degree of confidentiality. For whistleblower claims under the False Claims Act, the cases are filed under seal, but a whistleblower should expect that his or her name will eventually be disclosed.
  • Whistleblower claims can take a long time, often several years, while the government investigates and potentially pursues the claims. Depending upon which whistleblower program the claim is made under, the whistleblower may or may not be given substantive information about the government’s progress on the claims.
  • The whistleblower lawyer is going to be the person who advocates for your claim to the government investigators, often for several years, and potentially pursues False Claims Act claims if the government turns the case down and you choose to continue with the claims. You should consider hiring an attorney with whom you are comfortable, and who has experience analyzing, presenting and pursuing whistleblower claims.
  • We represent whistleblowers on a contingency fee basis. That means that we will be paid only if the case results in a recovery. We will set out the terms of our fees in a written engagement agreement with you.