Can I Get in Trouble for Whistleblowing if I Took Part in Committing the Fraud?

rene-bohmer-430927-unsplash-copy-200x300One common concern that holds people back from becoming whistleblowers is the fear that they will face discipline for being involved in the same fraud they are now reporting. Sometimes employees feel coerced by their employer into partaking in fraudulent actions, and other times the employee may have been the one to spearhead the fraud. In both cases, if you have had a change of heart, and not only do you no longer wish to participate in the fraud, but you want to put an end to it altogether, contact the qui tam attorneys at Willoughby Brod today to learn more about what steps you should take next.

When You Participated in the Fraud but Did Not Spearhead it

Both the False Claims Act (FCA) and the California False Claims Act (CFCA) want to afford whistleblowers the maximum protection possible so as not to deter people from coming forth as a whistleblower. Therefore, in most circumstances, a whistleblower who partook in the fraudulent act they are now reporting will not face any penalties for participating in the fraud.

Oftentimes, employees feel pressured by their bosses to “be a team player” and “go along with it,” and give in to the pressure for fear of losing their jobs or being disciplined by their employer. Other times, you may think you are only obeying orders and do not even realize until later on that you have engaged in fraudulent acts. Both scenarios are common and understandable, and in most cases you will not be penalized for coming forth with information about the fraud.

For example, in United States ex rel. Marchese v. Cell Therapeutics Inc., the qui tam plaintiff was directly involved in defrauding physicians, but the court ultimately determined that he should not face any penalties because he was not the “initiator” or “planner” of the fraudulent scheme.

When You Spearheaded the Fraud

If you spearheaded the fraud, on the other hand, you may face penalties such as a reduction in your whistleblower reward. Typically, you are entitled to between 15% and 33% of the total award. However, both the FCA and the CFCA allow for a qui tam plaintiff’s share of the award to be reduced below the 15% minimum threshold if the plaintiff “planned and initiated the violation.”

Despite the existence of this rule, however, it has not been used often. One example of when it was used was in United States ex rel. Barajas v. Northrop Corp. There, the qui tam plaintiff admitted to falsifying test results for multiple categories of tests when he was only instructed by his employer to falsify results for one category of tests. The court found that since he initiated falsification on his own for the additional categories, he was part of the planning or initiating of the fraud and thus obtained only a 10.8% award, substantially lower than the statutory 15% minimum.

Contact a Santa Rosa or San Francisco Qui Tam Attorney Today

If you have been afraid to come forward with your whistleblower claim due to fear that you will be penalized for also engaging in the fraud, you should understand that in most instances, you will be protected by the FCA and CFCA for coming forward with your tip. In any instance, you can receive great clarity by speaking with an experienced Santa Rosa or San Francisco qui tam attorney about your options moving forward. Contact us online or at (800) 427-7020 today for a free consultation.

(image courtesy of Rene Bohmer)

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