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Mississippi Whistleblower Lawyer Advises: IRS Office of Whistleblower Annual Report Demonstrates Huge Opportunities for Claims

A recent Washington Post story about a Department of Justice False Claims Act prosecutor should send chills down the spine of any citizen and should be a black eye for the federal government. Former DOJ attorney Jeffrey Wertkin was arrested for trying to tip off companies that were being secretly investigated based on whistleblower tips.  His plan was to take on these companies as clients once he became a defense attorney in private practice.

As anyone who has considered making a whistleblower claim knows, there are tremendous risks involved. Having the DOJ—the attorneys sworn to prosecute these cases for the federal government—turn against you should not be one of those concerns. If you are a Mississippi whistleblower or think you may be, call Barrett Law now at (601) 790-1505.

As an attorney, Wertkin represented False Claims Act cases brought by the federal government after whistleblowers provided tips. As a result, he had access to secret files based on those tips against companies that were unaware of the government’s investigation and the whistleblowers working from within the companies. After prosecuting those cases for six years, he decided to leave the DOJ for a private law firm, Akin Gump Strauss Hauer & Feld. That transition, from prosecutor to defense attorney is not unusual, and the law, DOJ policy, and ethical rules would normally prohibit the attorney from ever working on a case in private practice that they had access to during their DOJ career.

What makes the Wertkin case particularly unusual is that he ignored the law, policies, and rules applying to ethical conduct and took a number of undisclosed, sealed investigations with him when he left the DOJ. He then, wearing a wig and fake mustache, engaged in a cloak and dagger scheme to tip off companies to their impending prosecution. His pitch to them was that he had inside information and could best represent them in his role as a partner at his new firm. Amazingly, he was caught in the act of trying to sell these secrets and admitted to his wrongdoing on the spot. In what is now seen as a tremendous lapse by law enforcement, he was then released, returned to his office at Akin Gump Strauss Hauer & Feld and destroyed evidence of his crimes.

Obviously, Wertkin was looking to bring in clients and make money off of them, and his greed brought him down. He will be sentenced in March 2018 and will likely serve several years in jail. His punishment is a small part of this puzzle, however.

Wertkin’s acts cast a long shadow over the DOJ, and raise questions about DOJ attorney conduct. For example, is this a unique case, or have other former DOJ attorneys engaged in a similar pattern of conduct in the past? How many other of Wertkin’s cases were corrupted as a result of this conduct? Most importantly, each of these cases was the product of a brave whistleblower who took tremendous risks in an effort to help the federal government end fraud. Those cases are now likely irreparably harmed and will not result in any reward for the whistleblower. Should Wertkin’s misdeeds deny those whistleblowers the rewards that they are due? Taking these questions together, it is clear that Wertkin’s behavior undermines public trust in the False Claims Act process specifically and whistleblower protection in general.  What can and will the federal government due to rebuild that trust? Whistleblowers will only come forward if they have total confidence that the government will maintain their confidentiality.

What Should You Do if You are Considering a Whistleblower Claim?

Are you considering filing a whistleblower case? You will require the help of an experienced whistleblower attorney to decide whether the conduct you have observed constitutes fraud. Evidence gathering, dealing with the federal government’s attorneys, important deadlines, and filing requirements make your representation both complex and time-sensitive.

Call Barrett Law now at (601) 790-1505 if you think you may be an IRS whistleblower.

Having expert legal advice by your side can mean the difference between receiving your share of a whistleblower judgment and losing your career and livelihood. Call us today.

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Mississippi Whistleblower Lawyer Advises: Huge, Recent SEC Awards Highlight Whistleblower Opportunities

Two recent awards from the Securities and Exchange Commission (SEC) totaling $16 million dollars in two whistleblower cases highlight the importance of whistleblowers to uncovering corporate corruption and the significant awards awaiting those willing to bring those behaviors to light. The SEC’s whistleblower program pays large awards to those who provide timely information resulting in a successful prosecution. A whistleblower may receive up to thirty percent of any sanction imposed on a corporation, and the sanctions are often in the millions of dollars.

If you are considering making an SEC whistleblower claim, you should understand the risks involved, including retaliation and loss of a career. Those risks are taken to achieve a significant reward, but the reward is not known until an investigation and successful prosecution. Accordingly, it is vital that you retain experienced whistleblower counsel to help you through this process so that the risks are mitigated and the reward is maximized.   know that there is extremely high risk that your whistleblowing will anger your employer. That anger can translate into retaliation against you, which often results in a whistleblower losing his or her job. You should know that retaliation is prohibited under the False Claims Act, however, and can result in your reinstatement, as well as other penalties such as double back pay, fines, and attorney fees.

This past On November 30, 2017, the SEC announced two whistleblower awards of more than $8 million each for their help successfully prosecuting two SEC enforcement actions. In these decisions, the SEC highlighted the aspects required for any successful whistleblower claim. Specifically, the claimants filed timely and original information. In other words, the whistleblowers were the first to file and filed information that the SEC was unaware of.

Case One—this whistleblower provided original information to the SEC.  Once the SEC’s investigation was underway, the whistleblower communicated with SEC numerous times throughout the investigation, providing significant information including identification of relevant documents and witnesses, saving the SEC substantial time and resources.

Claim Two—this whistleblower and their attorney also provided original information to the SEC through its online Tips, Complaints, and Referrals (TCR) system. The whistleblower and their attorney continued to provide supplemental information over the next year while the SEC investigated the case. Because of this whistleblower’s information gathering, they aided the SEC in “more fully and quickly understand[ing] the misconduct and to assess the legal consequences.”

The SEC could not do its work without whistleblowers.  The Chief of the SEC’s Office of the Whistleblower Jane Norberg stated that the work of whistleblowers is evident in the “more than $671 in disgorgement of ill-gotten gains, much of which has been or is scheduled to be returned to harmed investors,” and recovered “based on actionable information from whistleblowers.” Overall, enforcement actions involving whistleblower awards have helped the SEC recover more than $1 billion in financial remedies.

What Should You Do if You are Considering a Whistleblower Claim?

Are you considering filing an SEC whistleblower case? You will require the help of an experienced whistleblower attorney to decide whether the conduct you have observed constitutes an SEC violation. Evidence gathering, dealing with the federal government’s attorneys, important deadlines, and filing requirements make your representation both complex and time-sensitive.

Call Barrett Law now at (601) 790-1505 if you think you may be an SEC whistleblower.

Having expert legal advice by your side can mean the difference between receiving your share of a whistleblower judgment and losing your career and livelihood. Call us today.

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Mississippi Whistleblower Lawyer Advises: What Are Some Lessons Learned from Recent SEC Whistleblower Cases? 

PART II

In the first half of this blog post, I reviewed how establishing material facts and determining your eligibility to make a whistleblower claim to the SEC are critical first steps in your case.  Now, I will go over three more vital steps to receiving a multi-million dollar SEC award.

Act Fast, Act First

The SEC has little use for “old news.”  You have an opportunitNewy to attain ten to thirty percent of any penalty the SEC collects from a company it successfully prosecutes, but only if you are the first to provide them with the tip that leads to that prosecution. You must consider that if you know of illegal activities at a corporation, others likely do as well. If you both become whistleblowers, only the first to tip off the SEC with that information will receive a reward, and the second to file may get nothing. While a second whistleblower may get some reward if their tip “significantly contributes” to the prosecution, there is no guarantee to those second or third in line.

Another consideration is how fast you acted on reporting illegal information once you became aware of it.  An award may be significantly reduced if a whistleblower only came forward once they know an investigation was imminent. Another reason for a reduction is when the whistleblower participated in the illegal activity and failed to stop it from occurring. Basically, the more culpable you are and the longer you delay due to your own participation in illegal acts, the more your reward may be reduced by the SEC.

Know the SEC’s Rules

Besides those listed above, there are other SEC rules affecting whether the SEC will increase or decrease your reward for whistleblowing. Some examples involving delay and culpability were discussed above that may reduce a reward. Similarly, your reward may be reduced if you were involved with disabling or improperly subverting a corporation’s compliance systems that would have normally caught the illegal activity in question.

With the help of experienced whistleblower counsel, you may also be able to increase the size of your award. For example, if you provide a significant tip that alerts the SEC to illegal conduct that they are particularly interested in policing, that may result in a more significant reward. Similarly, if you provide a significant amount of help to the SEC in either gathering evidence or prosecuting their case, your reward may be increased.

Your Whistleblower Tip Should be Attention-Grabbing

Like many government agencies, the SEC’s Whistleblower Office is tasked with doing a lot with a small staff.  They receive thousands of tips each year, but can only process a small fraction.  You are taking a great risk by filing a tip, so how do you make sure that risk generates a significant reward? Working alongside experienced whistleblower counsel, you can draft a tip that successfully catches the SEC’s attention.

First, make the SEC’s work easier for them; avoid general tips that do not clearly indicate how a case will be prosecuted.  Instead, lay out how the whistleblower tip can easily be prosecuted. Second, show the SEC that the violation is clearly material, meaning that it is demonstrably a violation of the law.  Finally, provide actual documentary evidence of your claim.  Many tips are just allegations, and providing physical evidence is an important first step to demonstrating that the claim can be prosecuted successfully.

What Should You Do if You are Considering a Whistleblower Claim?

Are you considering filing a whistleblower claim? You will require the help of an experienced whistleblower attorney to decide whether the conduct you have observed constitutes a violation of the False Claims Act. Evidence gathering, dealing with the federal government’s attorneys, important deadlines, statutes of limitations, and filing requirements make your representation both complex and time-sensitive.

Mississippi Whistleblower Attorney Jonathan Barrett is available now at (601) 790-1505

Having expert legal advice by your side can mean the difference between receiving your share of a whistleblower judgment and losing your career and livelihood. Call us today.

 

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Mississippi Whistleblower Lawyer Advises: What Are Some Lessons Learned from Recent SEC Whistleblower Cases? 

Part I

Do you work for a corporation regulated by the Securities and Exchange Commission (SEC)? The SEC Whistleblower Program provides significant rewards to employee whistleblowers—to date, more than $150 million to 42 whistleblowers. When an award is made, whistleblower attorneys note information that the SEC found important to making a significant award.  This blog post offers some of that guidance to you. However, if you are considering becoming a whistleblower, retain experienced whistleblower counsel now, as simple mistakes could cost you millions in award money.  The first part of this blog post will highlight the first two takeaways from the SEC’s award filings, and the next three are in Part II.

Establishing a Material Violation

Many people have knowledge of acts falling below best practices or that are unprofessional. That is not really sufficient to become a successful SEC whistleblower. The most important first step in an SEC whistleblower case is proving a clear and material violation of federal securities law.  What this means is that the information you will provide is clear enough and serious enough that it justifies the SEC prosecuting the case.

What does this mean for you and your whistleblower counsel? Well, it means that your hunch that something illegal is occurring or the pattern of irregularities that you have noticed will need time and resources devoted to it to make it clear that specific illegal actions are taking place and that there is credible evidence supporting your allegation.

Your Eligibility Because May Affect Award Percentage

Once you have determined that specific, illegal actions are taking place, you must determine your SEC eligibility as a whistleblower. The next step in any successful whistleblower claim is to determine eligibility. In a broad sense, anyone who is involved with an SEC-regulated company can become a whistleblower, including attorneys, auditors, and board members. However, the most common person to come forward and report wrongdoing is an auditor or accountant who has access to the company’s financial filings.

There are complexities to determining eligibility that will require experienced counsel.  For example, there are different eligibility rules for an internal auditor working for a corporation as opposed to an outside auditor hired to review a company’s books, and it is easier for the former to become a whistleblower than the latter. An internal auditor does not have a duty to report the illegal activity if he or she knows that the company is already aware of it, while an outside auditor must first report illegal activity to a superior and then wait to see if his or her superior reports it to the SEC. Knowing these requirements and others is critical to attaining your reward.

In short, you should not assume that you are an eligible SEC whistleblower just because you have knowledge of illegal activity. There are facts specific to your case that must first be analyzed by an experienced whistleblower attorney. That careful analysis may make a significant financial difference in your case; it could mean the difference between a multimillion-dollar whistleblower award and nothing.

CONTINUED IN THE NEXT BLOG POST

What Should You Do if You are Considering a Whistleblower Claim?

Are you considering filing an SEC whistleblower case? You will require the help of an experienced whistleblower attorney to decide whether the conduct you have observed constitutes an SEC violation. Evidence gathering, dealing with the federal government’s attorneys, important deadlines, statutes of limitations, and filing requirements make your representation both complex and time-sensitive.

Call Barrett Law now at (601) 790-1505 if you think you may be an SEC whistleblower.

Having expert legal advice by your side can mean the difference between receiving your share of a whistleblower reward and losing your career and livelihood. Call us today.

 

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Mississippi Whistleblower Lawyer Advises: What Claims are Covered by the False Claims Act?

The federal False Claims Act outlaws any activity that results in an individual or organization improperly obtaining money from the U.S. government. Historically, it has been used to fight false claims for payment, illegal selling of government property, kickbacks, or other “fleecing” of American taxpayers. If you are aware of this sort of illegal activity, you may be considering becoming a “whistleblower” under the False Claims Act.  Being a whistleblower is another term for bringing a “qui tam” claim, which is a Latin term meaning “he who sues for the king and himself.” In short, as a whistleblower in a qui tam case, you formally report government corruption for the good of society but are also making that report because you want to be paid a financial reward. To get that reward, a qui tam investigation needs to gather significant evidence that fraud has actually occurred within a specific timeframe and then report it before someone else does.

Before bringing a claim, it is important that you understand which types of behavior are covered by the False Claims Act. Not every act of deceit is a violation of the False Claims Act, and it primarily covers the fraudulent taking of money from the U.S. government.

If you are considering making a claim under the False Claims Act, you should know that there is extremely high risk that your whistleblowing will anger your employer. That anger can translate into retaliation against you, which often results in a whistleblower losing his or her job. You should know that retaliation is prohibited under the False Claims Act, however, and can result in your reinstatement, as well as other penalties such as double back pay, fines, and attorney fees.

Claims Covered by the False Claims Act

While there is not room in this post for a complete listing of all activities prohibited under The False Claims Act, a partial listing follows:

  1. Conducting business on behalf of the U.S. government that results in overpayment, and keeping that overpayment;
  2. Conducting business with the U.S. government in a way that results in payment for services that are not performed or received;
  3. Contracting with federal government for defective products;
  4. Purchasing government property from employees who lack the authority to make the sale;
  5. Conspiring to violate the False Claims Act;

Exceptions to the False Claims Act

While the federal government is generally interested in prosecuting fraud, there are several exceptions where a fraud claim cannot be brought by a whistleblower.

Interesting, under the False Claims Act an current or former member of the military cannot bring a claim against another active duty member of the military for claims discovered while the whistleblower was in the military.

Second, whistleblower claims cannot be made against members of Congress, the federal judiciary, and senior members of the executive branch of the federal government. The information in the whistleblower’s claim must be unknown to the government at the time it is made.

Third, tax fraud or violations of the IRS Code are not subject to whistleblower claims under the False Claims Act.

What Should You Do if You are Considering a Whistleblower Claim?

Are you considering filing a qui tam suit as a whistleblower? You will require the help of an experienced whistleblower attorney to decide whether the conduct you have observed constitutes a violation of the False Claims Act. Evidence gathering, dealing with the federal government’s attorneys, important deadlines, statutes of limitations, and filing requirements make your representation both complex and time-sensitive.

Call Mississippi Whistleblower Lawyer Barrett Law now at (601) 790-1505 if you are a whistleblower.

Having expert legal advice by your side can mean the difference between receiving your share of a whistleblower judgment and losing your career and livelihood. Call us today.

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Mississippi Whistleblower Lawyer Advises: The Deadlines for Successfully Prosecuting a Whistleblower Suit

Are you considering becoming a “whistleblower”?  Being a whistleblower is another term for bringing a “qui tam” claim, which is a Latin term meaning “he who sues for the king and himself.” In short, as a whistleblower in a qui tam case, you formally report government corruption for the good of society but are also making that report because you want to be paid a financial reward. To get that reward, a qui tam investigation needs to gather significant evidence that fraud has actually occurred within a specific timeframe and then report it before someone else does.

Applications of the Traditional Statute of Limitations

Generally speaking, the deadline or “statute of limitations” for filing a whistleblower case against the United States government is six years from the time of the fraud’s occurrence. It is important to note that the trigger to the statute of limitations’ commencement is the occurrence of the fraud, not when the whistleblower subsequently became aware of it. So even if you just yesterday became aware of the fraud that occurred in 2010, you are generally too late to be a whistleblower regarding that fraud today. In short, understanding when the statute of limitations begins and ends is critical to someday receiving your financial reward.

On the other hand, some courts have made various exceptions to the standard statute of limitations for government officials and/or the federal government. Specifically, if you are a government official, you may be able to report fraud if it occurred within 10 years ago, so long as you learned of it within the past three years. That means that a government official could report fraud from 2010, beyond the normal six-tyear statute of limitations, if he or she learned about it within the past three years. Some courts only extend the traditional statute of limitations to cases where the federal government joins the case or to only to the federal government itself and not the whistleblower. Obvious, the facts of your case and understanding what the courts of your jurisdiction have held is key to knowing if this exception applies to you.

“First to File” Deadline

The above discussion concerned how long a person has to file a qui tam case before the statute of limitations expires. However, there is another important time constraint that must be considered. Specifically, the federal government only pays out to a person who first files a whistleblower claim. So while you may have six years to file the claim, that long period of time will be useless to you if coworkers or other contractors are also aware of a fraud and file first. If you are aware of fraud, others are likely aware of it as well. Thus, there is a “race to the courthouse” amongst those aware of the fraud to become the “first to file,” as only the first to file is entitled to any financial reward.

Are you considering filing a qui tam suit as a whistleblower? Evidence gathering, dealing with the federal government’s attorneys, important deadlines, statutes of limitations, and filing requirements make your representation both complex and time-sensitive.  Consulting with an experienced whistleblower attorney is necessary to protect yourself, your livelihood, and your rights.

Call Barrett Law now at (601) 790-1505 if you are a whistleblower.

Being a whistleblower is a stressful process requiring experienced legal advice to protect your rights. Contact us to relieve that stress and receive the legal advice you need. Barrett Law is a Mississippi whistleblower defense firm with a track record of successfully protecting our clients’ rights in qui tam claims. Having expert legal advice by your side can mean the difference between receiving your share of a whistleblower judgment and losing your career and livelihood. Call us today at (601) 790-1505 to learn more about how Mississippi Whistleblower Lawyer Jonathan Barrett can make a difference for you.

 

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Edward Snowden Calls for Reform of Whistleblower Laws

Edward Snowden, the now notorious former National Security Agency contractor who exposed classified documents to several media outlets, has recently called for more extensive whistleblower protections to protect concerned contractors and employees.  In a live chat transmitted on FreeSnowden.is, Snowden stated that legal channels for raising concerns were not available to him. Had he revealed the NSA programs he deems unconstitutional but classified to Congress, he states he would have been charged with a felony.  Snowden justified his action of approaching news outlets as the only viable choice under current whistleblower laws.

Snowden went on to explain that while NSA employees have access to whistleblowing channels, contractors, such as himself, do not.  Further, Snowden said the current laws do not provide real protections for anyone.  He said that had there been a real process in place where reports of wrongdoing were reviewed by independent arbiters, he would not have had to make the sacrifices he has to expose the facts he deemed necessary to the American public.

Snowden states that due to gaps in the federal whistleblower laws, he cannot return to the U.S. as he would be unprotected.  Snowden, who fled to Hong Kong and then Russia, acknowledges that returning to the U.S. would be the best resolution for the government, public and himself.  However, because Snowden is among a group of contractors exempt from current whistleblower laws, he feels a return is not possible.  Snowden believes he would not receive a fair trial absent adequate whistleblower protections.

The saga of Edward Snowden has cast new light on federal and state whistleblower laws.  Much of the controversy stems from an important initial question, is Edward Snowden a whistleblower?  Under the Whistleblower Protection Act, any disclosure made by a covered employee who reasonably believes there has been a violation of any rule, regulation, or law, or gross waste of funds, mismanagement, abuse of authority, or a substantial danger to public health and safety, is protected.  Since Snowden’s leak of documents, numerous lawsuits have been filed challenging the legality of the surveillance programs Snowden believed to be unconstitutional.

However, just because the leaked information served the public interest by exposing potential government illegality does not mean Snowden is protected under the law.  Traditionally, the intelligence community has been exempted from the Whistleblower Protection Act.  In 1998, Congress passed the Intelligence Community Whistleblower Protection Act.  The Act established a procedure for internal reporting within the agencies and through the Inspector General, but has been widely criticized as being ineffectual.  The Act provided no remedy for reprisals and merely identified the whistleblowers, leaving them vulnerable to retaliation.

Under current whistleblower acts, Snowden would not be considered a whistleblower.   For one, the information he disclosed arguably does not meet the criteria.  The surveillance programs he revealed are presumed to be constitutional, and not illegal, given the assent of Congress and the intelligence community.  However, even presuming what Snowden exposed was illegal, he meets a second problem under the law’s definition.  The Whistleblower Act protects public disclosures only if such disclosure is not prohibited by law.  As the information was classified and its disclosure a felony, Snowden would only have been protected had he brought his concerns to the NSA’s inspector general or to a member of the congressional intelligence committee.  Even further, under the current law, it is not clear that intelligence contractors are even protected.

The case of Edward Snowden will likely continue to have an impact on whistleblower laws and cases for years to come. At Barrett Law PLLC, we view the role of whistleblowers as vital to our community.  In Mississippi, whistleblowers are protected from retaliation when they step forward with important disclosures of law violations and may be entitled to compensation.  If you have potential information concerning a violation in your workplace, call us today at 1 (601) 790-1505 to schedule a free initial consultation.

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United States Department of Labor Files Whistleblower Lawsuit Against Clearwater Paper Corporation

On October 23, 2013, the United States Department of Labor, Occupational Safety and Health Administration, through Secretary of Labor Thomas E. Perez, filed a lawsuit against Clearwater Paper Corporation on behalf of a former employee of the company in the United States District Court for the District of Idaho.

According to the Complaint, Clearwater Paper Corporation operates a wood mill in Lewiston, Idaho, at which the former employee worked.  The former employee, Anthony Tenny, began working for Clearwater Paper Corporation in in 2004.  He was discharged on June 25, 2010.  During his employment with Clearwater Paper Corporation, Mr. Tenny repeatedly expressed concern to the company that its employees were being exposed to excessive amounts of red cedar dust.  Mr. Tenny also expressed concern to Clearwater Paper Corporation about the health affects of this exposure on the company’s employees.

Mr. Tenny’s concerns went unheeded, and in May 2010, he contacted the Occupational Safety and Health Administration (“OSHA”) about his concerns.  As a result of Mr. Tenny’s complaint to OSHA, it inspected the Clearwater Paper Corporation’s facilities in Lewiston.  Approximately one month later, Mr. Tenny was reprimanded and then terminated four days later.

One June 29, 2010, four days after his termination, Mr. Tenny filed a whistleblower complaint with OSHA.  OSHA investigated the complaint and determined that Clearwater Paper Corporation had violated the Occupational Safety and Health Act of 1970.  It determined that Clearwater Paper Corporation retaliated against Mr. Tenny for reporting his safety and health concerns to OSHA.

The Complaint seeks in injunction against Clearwater Paper Corporation from engaging in further violations of the Occupational Safety and Health Act of 1970; damages to Mr. Tenny for lost wages and compensatory and exemplary damages; reinstatement of Mr. Tenny; and the posting of appropriate notices informing its employees of their rights under the Occupational Safety and Health Act of 1970.  The total damages sought are in excess of $300,000.00.

OSHA is responsible for administering twenty-one federal whistleblower protection laws.  These include:  the Asbestos Hazard Emergency Response Act; the Clean Air Act; the Comprehensive Environmental Response, Compensation and Liability Act; the Consumer Financial Protection Act of 2010; the Consumer Product Safety Improvement Act; the Energy Reorganization Act; the Federal Railroad Safety Act; the Federal Water Pollution Control Act; the International Safe Container Act; the Moving Ahead for Progress in the 21st Century Act; the National Transit Systems Security Act; the Occupational Safety and Health Act; the Pipeline Safety Improvement Act; the Safe Drinking Water Act; the Sarbanes-Oxley Act; the Seaman’s Protection Act; portions of the Food Safety Modernization Act; portions of the Affordable Care Act; the Solid Waste Disposal Act; the Surface Transportation Assistance Act; the Toxic Substances Control Act; and the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century

If you are a federal employee and have been terminated or otherwise suffered adverse action because you raised concerns about the illegality or impropriety of your employer’s actions, Barrett Law, PLLC can help.  Please be aware that there are relatively short and absolute deadlines for filing complaints with OSHA regarding whistleblowing allegations.  As such, if you have suffered such an action, please contact us immediately to set up a consultation.  We have a history of helping to protect the rights of whistleblowers, and stand ready to help you.  To find out more about your legal rights, contact us today at (601) 790-1505.

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CA Technologies Agrees to Settle Whistleblower Lawsuit

On November 12, 2013, the United States Department of Justice, as well as several state Attorneys General offices, announced that they would be settling a whistleblower lawsuit against CA Technologies, Inc., brought against the latter by one of its former employees, Ann Marie Shaw.  The settlement involves the United States, California, Florida, Hawaii, Illinois, Massachusetts, New York (City of and State of), Nevada, Virginia, and the District of Columbia.  The settlement totals $11 million.  The United States Department of Justice will receive $8 million, and the remaining $3 million settlement amount will be divided amongst the aforementioned states and the District of Columbia.  California will receive the sum of $983,807.00; New York will receive the sum of $708,795.00; Illinois will receive the sum of $426,641.00; Florida will receive the sum of $327,416.00; Virginia will receive the sum of $227,583.00; Massachusetts will receive the sum of $204,639.00; Nevada will receive the sum of $73,794.00; the District of Columbia will receive the sum of $35,346.00; and Hawaii will receive the sum of $25,734.00.

CA Technologies, Inc., is a Fortune 500 company located in Islandia, New York.  CA Technologies is an independent software company that has a significant global presence, with offices all around the world.  It produces primarily products related to business-to-business mainframe computing and distributed infrastructure applications.

Ms. Shaw filed what is known as a qui tam lawsuit against CA Technologies in the United States District Court for the Eastern District of New York in 2006.   Ms. Shaw worked for the company for several years—from 2003 through 2006.  She was a Technical Sales Specialist and specialized in software product license sales to the United States.  The Complaint alleged that CA Technologies was liable under the federal False Claims Act, as well as various state false claims acts, to the United States, California, Florida, Hawaii, Illinois, Massachusetts, New York, Nevada, Virginia, and the District of Columbia, for fraudulent billing practices.  According to the Complaint, beginning no later than July 2003, CA Technologies defrauded its government customers by processing renewals of software maintenance servicing plans improperly.  CA Technologies renewed the plans as of the date of the renewal order rather than as of the date of the expiration of the current software maintenance plan.  This billing practice created millions of dollars of overbilling, charged the Complaint.  The Complaint details numerous specific examples regarding this improper renewal process, with government clients ranging from the United States Department of Defense to the City of Santa Monica to the Hawaii Department of Public Safety.

The Complaint also alleged that CA Technologies defrauded the United States Department of Defense by encouraging it to purchase software it had already paid for from third-party vendors.  Beginning in 1998, the United States purchased large blocks of software licenses from software manufacturers, including CA Technologies resulting in a substantial inventory of pre-paid software licenses.  When Department of Defense employees inquired to CA Technologies about software needs, rather than informing the Department of Defense employees that the software they were seeking was already purchased as part of the pre-paid inventory, CA Technologies employees directed the Department of Defense to third-party vendors to purchase the identical CA Technologies software.

If you are an employee and find yourself in a situation in which you have raised complaints about practices by your employer and are facing retaliation as a result of the same, Barrett Law, PLLC can help you understand your rights and the protections to which you may be entitled.  We have a long history of protecting the rights of whistleblowers.  Contact us today at (601) 790-1505 to schedule an initial consultation.

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United States Supreme Court Hears Oral Arguments on Breadth of Whistleblower Protections of Sarbanes-Oxley Act

On November 12, 2013, the United States Supreme Court heard oral arguments regarding the breadth of whistleblower protections under the Sarbanes-Oxley Act.  The arguments came in the matter of Lawson v. FMR, LLC.  The United States Supreme Court is expected to issue its ruling next spring.  The case arose out of two separate lawsuits filed against FMR and several related companies (the “FMR defendants”) by two of their former employees.  The employer-companies were private companies, but contracted and subcontracted work with publicly-traded companies.

The first case involved Jonathan Zang, who filed a complaint with the Occupational Safety and Health Administration (“OSHA”) in 2005.  It alleged that Mr. Zang had been terminated in response to concerns he voiced about registration statements for certain funds of Fidelity Management & Research Co.  Specifically, Mr. Zang indicated he believed that the registration statements in question violated various securities laws.  OSHA dismissed the complaint, finding that he had not engaged in protected activities. Mr. Zang requested review of the decision in front of an Administrative Law Judge (the “ALJ”).  The ALJ found that Mr. Zang was not covered under the whistleblower protections of the Sarbanes-Oxley Act, as he was an employee of a private, not public, company.  Mr. Zang then filed a lawsuit in the District Court for the United States District Court for the District of Massachusetts.

The other lawsuit was brought by Jackie Hosang Lawson against the FMR defendants, alleging that she had been forced to resign in 2007 for raising concern about the company’s cost accounting practices.  Ms. Lawson filed a complaint with OSHA alleging violations of the whistleblower protection provisions of the Sarbanes-Oxley Act.  Approximately a year later, Ms. Lawson notified OSHA that she intended to file a lawsuit in the District Court for the United States District Court for the District of Massachusetts, which she did.

The FMR defendants sought dismissal of both lawsuits, arguing that the whistleblower protections of the Sarbanes-Oxley Act did not extend to either Mr. Zang or Ms. Lawson.  The FMR defendants argued that the protections did not extend to employees of private companies, even if those private companies are contractors or subcontractors to public companies.  The United States District Court for the District Court of Massachusetts, Honorable Douglas P. Woodlock, addressed the arguments in a combined opinion.  He found that the whistleblower provisions of the Sarbanes-Oxley Act did, in fact, extend to Mr. Zang and Ms. Lawson.  Judge Woodlock limited the extension of the Sarbanes-Oxley Act in such circumstances to reporting violations related to fraud against shareholders.

The FMR defendants appealed the decision to the United States Court of Appeals for the First Circuit.  On February 3, 2012, the First Circuit reversed the decision of Judge Woodlock.  It found that under the circumstances in the cases at hand, the whistleblower protections of the Sarbanes-Oxley Act did not extend to Mr. Zang or Ms. Lawson.  The First Circuit was careful to note that the cases at hand involved public companies affiliated with the private companies wherein those public companies were not involved in directing the retaliatory actions against the private company employees.

On July 30, 2012, Mr. Zang and Ms. Lawson filed a Petition for Writ of Certiorari with the United States Supreme Court, requesting that it review the decision of the United States Court of Appeals for the First Circuit.  On May 20, 2013, the United States Supreme Court granted the Petition for Writ of Certiorari, indicated that it would hear and rule upon the request for review of the decision of the United States Court of Appeals for the First Circuit.

If you are in a retaliatory situation due to having raised concerns about practices by your employer, and you live in Mississippi, Barrett Law, PLLC can help you understand your rights and the protections to which you may be entitled.  Our firm has extensive helping individuals obtain the protections to which they are entitled.  Contact us today at (601) 790-1505 to schedule an initial consultation.

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