Top Five Whistleblower Predictions for 2017
Making predictions for what might happen in the Trump administration isn’t what you’d call a slam dunk. So many things have changed since the Obama administration that it isn’t easy to calculate what the future might hold. And, of course, there are differing opinions among all those who make a career from having opinions. We do have to take into account what others think, but after sifting through a lot of information, some themes have begun to appear. Here are our predictions—or at least our best guesses—as to what might happen in the world of whistleblowing during 2017.
1. A radical change in presidential leadership will have a significant impact—but how much of an impact, and in which direction, is hard to predict.
President Trump is on record as wanting to get rid of a number of laws that have some connection to whistleblowing, such as Dodd-Frank (also known as The Dodd-Frank Wall Street Reform and Consumer Protection Act) and The Sarbanes-Oxley Act of 2002, both of which concern wrongdoing in the banking and financial industries. Also, back in 2012, he called the Federal Corrupt Practices Act (FCPA) a “horrible law and it should be changed.” Trump characterized the FCPA as putting U.S. businesses at a disadvantage.
On the other hand, Trump is also on record as saying he’s no friend of government fraud and waste.
He’s made numerous statements about the high cost of prescription drugs as well. The suggestion is certainly there that he wants his administration to keep up the pressure when it comes to false claims in healthcare. So, perhaps the picture is positive for healthcare-related false claims suits, but less rosy for financial industry false claims qui tam cases.
2. The President’s new, more conservative Cabinet will also likely translate into changes regarding whistleblowing and pursuing fraud.
Attorney General Sessions will have a large impact on whistleblowing, and most likely it will be somewhat positive. Sessions is on record as supporting whistleblowers, and said during his Senate Judiciary Committee confirmation hearing, “It’s not acceptable to retaliate against a whistleblower.” Sessions is also on the record as saying he would support enforcing the Federal Corrupt Practices Act (FCPA), mentioned in the previous prediction. Sessions has indicated that the Department of Justice would likely follow the principles in the Yates Memo from September, 2015. Doing so would mean continuing to hold corporate executives accountable in FCA cases if they are guilty of wrongdoing.
Additionally, Health and Human Services Secretary Tom Price has emphasized his intention to find and prosecute fraud. It’s worth mentioning that, in 2016, more than half of the money recovered in FCA settlements and judgments came from healthcare fraud cases—$2.5 billion, in fact. Whistleblowers played a significant role in many of the cases.
AG Sessions, however, appears less happy with the seeking of extensions for 60-day seals on cases. The end result is that more cases may end up being declined because of the lack of time the government needs to investigate, should fewer extensions be granted.
3. Repealing certain legislation could be a game-changer.
For example, the repeal of the Affordable Care Act (ACA) would have an impact on health care fraud cases. Parts of the ACA changed the False Claims Act’s public disclosure bar, which allowed more persons to qualify when it comes to bringing cases (that is, to become relators). The ACA also reduced the burden of proof that the government needs for anti-kickback statute (AKS) cases.
As we mentioned earlier, legislation like Dodd-Frank has whistleblower provisions. In this case, Section 922 of Dodd-Frank states that the SEC will pay awards to “eligible whistleblowers who voluntarily provide” original information that leads to a successful enforcement action that involves sanctions of over $1 million. Dodd-Frank also includes important and needed protections against whistleblower retaliation.
4. The Supreme Court may play a role in all of this.
Several FCA cases in the recent past have been granted certiorari, or the right to be heard by the Court. Some think that the granting of certiorari indicates increasing interest on the Court’s part in addressing the splits among the circuit courts that have occurred.
Because of this situation, the vacant position that needs filling on the Supreme Court (due to the death of Justice Scalia) may become significant to false claims cases. It’s also possible that other court seats may become vacant and will need to be filled over the next four years, further altering the landscape of future decisions.
5. No matter what happens, relators will continue to bring cases.
Even if the government declines to intervene, whistleblowers will keep doing what they do—blowing the whistle on fraud. Consider that, under Obama, cases brought by whistleblowers increased around 66 percent over the Bush administration. And yet the number of cases brought by the Department of Justice remained about the same for both administrations.
That fact means that, unless whistleblowers experience severe restrictions, they will likely continue to bring cases—and win cases—regardless of the administration in charge.
We at the Louthian Law Firm want you to think about the last point: Cases will continue to be brought regardless of which administration is in power, because it is what whistleblowers do — they see fraud and they bring cases. Should you have information concerning false claims submitted to the government that you believe is strongly substantiated, don’t be overly concerned with the political climate. Seek legal assistance and pursue what you believe to be right.
Blowing the Whistle? We Can Help You with Your Next Step.
If you think you have the facts needed to bring a whistleblower case, the experienced whistleblower attorneys at the Louthian Law Firm can review your case and help you file the appropriate disclosure statement. Under some circumstances, the government will intervene, or join in your lawsuit.
Your chances of succeeding are greater if your whistleblower claim is substantive, clear, and to the point. Because of this, meeting with a qualified whistleblower attorney can increase your chances of winning. The Louthian Law Firm can help you form your claim so that the government will be more inclined to intervene in your case; government intervention can sometimes increase the chances of recovering reward money. Even if the government decides not to intervene, it could still be a good idea to pursue your case without government involvement. Our strong support system can assist you through every step of the process.
For a free, confidential evaluation of your case, call the Louthian Law Firm today at 1-803-454-1200 or, if you prefer, you can fill out our online contact form.