These are the five key elements to all whistleblower claims.
1) Evidence of Fraud
The cornerstone of any whistleblower claim is proof that fraud or misconduct is the cause of (i) financial loss to the government (covered under the False Claims Act and related statutes), (ii) a violation of the securities or commodities laws (covered under the Dodd-Frank Act), or (iii) harm to employees or the general public (covered by industry specific whistleblower laws dealing with the environment, public health and safety, consumer welfare, etc.).
Common examples of fraud or misconduct include:
- Billing the government for products or services not provided, malfunctioning, sub-standard, mislabeled, or different from the products or services for which the government contracted
- Failure to report government overpayment
- Obtaining government funds through false certifications of compliance or through violations of law
- Selling and/or marketing drugs outside of FDA approved uses
- Accounting fraud
- Fraud or trading manipulation in securities or commodities
- Misconduct in sales of securities, bonds, or commodities (i.e. ponzi schemes, insider trading, accounting fraud, bribery, market manipulation, etc.)
- Bribing foreign officials
2) Concrete and Specific Evidence
Suspicion or doubt is not enough to claim fraud or misconduct. You must have concrete and specific evidence of the fraud. Though not required, documentary evidence will vastly increase the probability of government interest. Knowing as many specific facts as possible about the fraud or misconduct will also greatly strengthen your claim.
3) Original Evidence
Generally, you must provide the government with new information that it could not otherwise obtain. Therefore, the collected evidence cannot come from public sources, such as the Internet, TV, government records or reports. Public information may be utilized in certain instances if you provide a unique analysis demonstrating the existence of the fraud or misconduct.
You do not need to have witnessed the fraud or misconduct to have a claim.
4) The “First to File” Rule
The “first to file” rule bars a whistleblower from filing a claim if another whistleblower has already done so based on the same facts or evidence. Therefore, it is best to file your claim as soon as possible. Multiple whistleblowers, however, may file a joint claim or separate claims based upon different evidence.
5) Statute of Limitations
The statute of limitations varies depending on your whistleblower claim. For the False Claims Act, cases generally must be filed within six years of the violation. For the Dodd-Frank Act, claims generally must be reported to the whistleblower office of the SEC (for securities violations) or the CFTC (for commodities violations) within thee years of the violation. For violations of the various state FCA laws and industry specific whistleblower laws, claims must be reported between 30 days and 6 years after the violations, depending on the particular statutes at issue. Statutes of limitations are subject to change, and you should consult with a whistleblower lawyer as soon as you realize that you may have a claim.