Death and Whistleblower Collections

I bring this subject up reluctantly, because, well, nobody ever really likes to think about what happens if they die. Still it is worth knowing what can happen if you bring a case under the False Claims Act and you die before it is over.

As you may expect, I’m getting this question from clients and colleagues lately, who may not have asked about it much before. We all have been made much more aware of our own mortality as a result of the Covid crisis and because of the perception that the crisis is also slowing down some functions of government including investigations into fraud. I’m happy to say though that generally most investigations are proceeding. It took some time for government agencies to adjust, not everyone has adjusted and as in every other area of the world, some things have slowed down, but mostly we are going forward with cases.

Still, whistleblower cases in general do not move as fast as anyone would like. I’m sorry to say I’ve faced this problem in a couple of cases. Twice I have had a client died, while entitled to money from a successful False Claims Act case.

In most instances this is relatively easy for the lawyer to handle, assuming it involves a case in which the government intervenes and obtains a collection. It is likely not possible to pursue a case without that support and without the original whistleblower who filed the case.

Most courts will allow a whistleblower to substitute a relator for the purposes of obtaining the award when the government has obtained a collection.

Obviously, the whistleblower should let the attorney know to whom they would like such a collection to be directed as early as they can.

It’s difficult, of course. Whistleblower law is unusual and the clients are special people. The time it takes to pursue cases and the fact that most cases remain under seal so that the whistelblwoer can only really talk about them with their counsel usually creates a strong professional relationship between client and counsel by the time there is a collection.

I can at least say, that obtaining the money for the rightful heir does bring real comfort to someone in a time of need. It is not just money that is needed at a difficult time. It is also money that the whistleblower earns and that whistleblower’s family can be proud to receive. All whistleblowers are heroes. Whistleblowers who obtain an award should be known as such especially to their family.

It’s not a fun issue to discuss, but be sure to raise this point with any counsel pursuing such a case on your behalf.

Like most aspects of law it is far better to raise the issue early and plan.