Whistleblowers often have fantasies about a dramatic courtroom exchange with the defendant. I have to break the news that things are not going to happen the way they visualize. There isn’t going to be any sort of Perry Mason moment. Here’s how those conversations go:
IRS Whistleblower Client: So, I figure that MegaCorp can try to get out of this by saying they DID keep records, but then I can just ask them to SHOW me the records, and then they won’t be able to.
Me: Ummm. You get that there isn’t going to be any face to face discussion between you and MegaCorp, right?
IRS Whistleblower Client: Well, there’s an investigation, so we can ask them….
Me: Nopes. The investigation is the government’s investigation. It’s difficult to get the IRS to talk to us, and there is no chance we will get to sit in when and if the IRS interviews MegaCorp.
IRS Whistleblower Client: What?!?
FCA Whistleblower Client: So, FraudCo shredded the documents, and they don’t know I have copies, so when they say the documents don’t exist, we can say…..
Me: Ummmmm. You know that there isn’t going to be any sort of back and forth between you and FraudCo, right?
FCA Whistleblower Client: Oh! Right! So, YOU can say…..
Me: There isn’t going to be a back and forth between me and FraudCo either. The government probably won’t even tell FraudCo a whistleblower is involved until it finishes its investigation.
FCA Whistleblower Client: What?!?
SEC and CFTC Claims
SEC/CFTC Whistleblower Client: So, what do you think CheesyBroker Ltd. will say about this during the investigation?
Me: Hard to say. Defense says all sorts of things.
SEC/CFTC Whistleblower Client: We need to be there because we can rebut whatever CheesyBroker says, but we can’t really guess, I agree.
Me: Ummmm. You know the investigation isn’t going to go like that, right? IF the government investigates, it might do the whole thing through documents, and anyway, we won’t be in the room when they meet with the defendants, IF they do.
SEC/CFTC Whistleblower Client: We need to be there, so how can we talk the prosecutor into that?
Me: The government isn’t going to want us there, and I don’t think the way you are imagining the investigation is the way the investigation is going to work.
SEC/CFTC Whistleblower Client: Well, you need to make prosecutor agree to have us in the room, so ask her.
Forget Perry, and Forget Matlock
Even with FCA complaints where the whistleblower has a private right of action, there is not going to be a back and forth, Perry Mason/Matlock – style, aha moment between the defendant and the whistleblower. There are a whole lot of reasons why, including some very basic concepts underpinning our justice system that I am happy to explain to folks, but for now, put those fantasies aside. It doesn’t work that way.