Anonymity in Whistleblower Cases

By | October 18, 2016

One of the first questions that might pop into the mind of a potential whistleblower is:  Will my identity be revealed when I come forward about the wrongdoing I’ve witnessed? 

Whenever the stakes of fraud are big and large sums of money are involved, a person who has witnessed wrongdoing might picture their face plastered on CNN and cameras being stuck in their face. While it is understandable for those who aren’t familiar with these types of cases to entertain ideas that are colored with a certain amount of grandeur, the realities of being a whistleblower are usually far less grand than one might think.

It’s also the case that once a relator (the whistleblower) works with their counsel to organize information, prepare a case and file a claim, the issue of anonymity starts to give way to the business of whistleblowing — meaning that once you start the process, worries about protecting identity often become less of a concern than they might have been when you first considered coming forward.

By the time a whistleblower has filed a claim, they will typically be confident both in their reasons for doing so and in the information they are providing to the authorities. The urge to speak up, along with the potential of receiving an award, will generally far outweigh worries about revelations of their identity.

Still, the question of how long a person’s identity remains hidden is still a valid one that deserves an answer. The answer, however, depends on the case and type of claim being filed. First, let’s address the reasons why a person might want to remain anonymous.

Reasons for Anonymity

The motivation behind someone’s wishes to remain anonymous depend on the individual. Maybe a person is inherently shy, or maybe they are intimidated by the thought of retaliation by their employer. Whistleblower retaliation has been known to occur, though provisions exist which forbid it and punish employers who attempt to “get back” at their employee for speaking out. Many potential whistleblowers might also be concerned about the impact that coming forward will have on their career. For those who have witnessed significant fraud against the government, the possibility of being associated with the fraud that has occurred may be intimidating.

How Long is Anonymity Protected?

The answer to this question is highly dependent upon a number of circumstances. For some whistleblowers, their identity is protected as long as the case is kept under seal by the courts.

There are also circumstances in which a whistleblower’s identity remains anonymous up until they receive an award for their part in a recovery. Anonymity can be ensured throughout a good deal of the process when a person reports fraud to the Securities and Exchange Commission. This is precisely what happened when the SEC awarded a whistleblower $14 million dollars for providing information that helped uncover fraud leading to the recovery of “substantial investor funds,” as mentioned in Forbes.

The SEC states that the anonymity of a whistleblower is protected provided (a) that they have counsel and (b) that their identity can be reported once an award is given to that whistleblower.

When it comes to whistleblower cases filed under the False Claims Act, anonymity is protected only up to a certain point. It is this type of whistleblower case in which identities are protected, for the most part, as long as there is a seal on the case. This varies greatly from one case to another. By default, the seal period is 60 days, though extensions can be, and often are, filed to give investigators more time. Sometimes multiple seals will be ordered and anonymity continues to be protected during that time.

It’s for this reason that whistleblowers should make sure that their claim is as well prepared as possible before filing.  An experienced whistleblower attorney will know how to garner the attention of the Justice Department and, should the DOJ choose to intervene in the case (which is what whistleblowers ultimately want to have happen), its success will be strengthened and the issue of anonymity will be less meaningful.

In suits utilizing the False Claims Act, there is also the possibility that a whistleblower’s identity will be revealed if there is a settlement in the works. However, this is not necessarily a bad thing for whistleblowers, as settlements can also result in substantial awards for relators.

Being Prepared to Have Your Identity Known

Of course, the best approach for any whistleblower to take is to prepare themselves for the moment in which their identity will be revealed. Consider all of the whistleblower claims that are filed and how many of them you see receiving significant amounts of press coverage. There are very few instances in which public awareness of the intricacies of a whistleblower case is high, and most of the claims brought forth garner very little outside attention. It is typically not an issue that should be of major concern for someone who has important information about fraud or wrongdoing that they have witnessed against taxpayers.

Whistleblowers have a number of reasons that they want to remain anonymous but, generally speaking, that is only one of the many considerations that a whistleblower will make before proceeding with a claim. For most people who have important information and wish to bring a case on behalf of the government, the decision to move forward with a claim is much more dependent on the fact that they wish to do good, that they can rightly receive a portion of the award and, in some cases, that they themselves do not become complicit in the wrongdoing through their silence.

It takes a certain amount of courage to be a whistleblower, but having your identity known is really only a small part of the equation for the those who choose to come forward about fraud and abuse. Deciding to blow the whistle is not a decision that one should take lightly, but once that choice is made, a whistleblower can move forward in the confidence that they are doing the right thing, which is an invaluable asset to have on your side.

About Author

Bert Louthian is a whistleblower attorney in South Carolina who focuses on helping those who have been wronged, or who have witnessed wrongdoing to come forward to report fraud. 

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