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Anonymous Whistleblowing: What You Need to Know

September 22, 2016

One of the most frequent questions we are asked by potential whistleblowers is if they can remain anonymous when bringing a whistleblower case. This is an important concern for many whistleblowers who wish to come forward to report fraud. We understand this concern and the risks whistleblowers face. Our attorneys will listen to you and will candidly discuss the process of bringing a whistleblower case while addressing the concerns you may have.  

So, can you remain anonymous as a whistleblower? The answer is that it depends – depends upon the kind of case you bring, the laws under which your case is brought, and the availability of strategies to protect your identity.

Anonymous Whistleblowing in SEC and CFTC Cases

In 2010, the Dodd-Frank Act made significant changes to the nation’s financial regulations and strengthened the power of the Securities and Exchange Commission (SEC). To aid in the government’s enforcement efforts, the Act allows people who come forward and report fraud to receive a portion of the money recovered as a result of a subsequent SEC or Commodity Futures Trading Commission (CFTC) action if the total recovery exceeds $1 million. If all the requirements are met, the whistleblower can receive between 10 percent and 30 percent of the money recovered.

Importantly, both the SEC and CFTC whistleblower programs specifically allow for anonymous whistleblowing. Indeed, numerous whistleblowers have received substantial awards from the SEC while remaining anonymous. In other words, these whistleblowers have successfully reported fraud, been granted a monetary award, and have remained anonymous to the public. It is important to note, however, that SEC and CFTC whistleblowers who wish to remain anonymous must utilize an attorney to file their whistleblower claims.

Can Whistleblowers Remain Anonymous in False Claims Act Cases?

The False Claims Act (FCA) does not contain a provision allowing whistleblowers to remain anonymous. Depending on the facts of the case, however, there are strategies that an experienced whistleblower attorney can use to attempt to keep a whistleblower’s identity secret for as long as possible.

FCA cases are filed “under seal,” which means that the case and the whistleblower’s identity will be kept secret for a certain period of time to allow the government to investigate the allegations and determine whether to “intervene,” or join the lawsuit. This investigatory period can range from several months to several years depending on the complexity of the case, the extent of the government’s investigation, and the court’s willingness to extend the seal period. After the government completes its investigation and makes a decision on whether to join the case, the case will be unsealed. At this point, some of the court documents, typically including the complaint, will become available as part of the public court docket.

One strategy which may be used to shield a whistleblower’s identity is to file the case under a pseudonym – such as “Jane Doe” or “John Doe” – rather than under the whistleblower’s real name. Some courts permit John Doe filings while others do not. Another is to establish a partnership or corporation and file the complaint under the name of the corporation or partnership. Doing so may prevent disclosure of the whistleblower’s identity when the case is unsealed, particularly in those instances where the government declines to intervene and the whistleblower elects not to proceed with litigation. In such cases, another strategy is for the whistleblower to ask the court to keep the case under seal or to redact their name. This strategy is most likely to succeed in those instances where the relator can identify a specific harm that could result from disclosure. It is important to understand, however, that in many FCA cases, a whistleblower is not able to remain completely anonymous for the duration of the case.

All of these strategies come with their own risks and complications, and require careful consideration by an experienced lawyer.

Speak With An Attorney About Your Whistleblower Case

Whistleblower cases are complicated and call for experienced attorneys with a nuanced understanding of complex rules and practices. This is particularly true for whistleblowers who want to understand if they can remain anonymous when filing a whistleblower case.  

The whistleblower team at KTMC includes professionals who have worked for the Department of Justice, as federal and state prosecutors, as SEC enforcement attorneys, as FBI agents, as compliance officers, as consumer advocates, and as public defenders, with experiences in many varied fields – from health care to financial services to government contracting. If you think you may be a whistleblower, we want to hear your story. Get in touch with us today for a free, confidential consultation.

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