Government Agencies Involved in Whistleblower Investigations

The government does have the authority to issue civil investigative demands under the False Claims Act and attempt to obtain more information directly from the defendants in order to further the process of learning about the allegations.

If it is going to confront the defendant with the specific allegations and the complaint, the government has to go to court and ask permission of the court for what is known as a partial lifting of the seal. This means having the permission to say what specific allegations are involved to the defendant directly.

If you would like more information on the government agencies involved in whistleblower investigations, contact an experienced whistleblower lawyer.

Formality of a Government Investigation

Government investigations pursuant to the False Claims Act are relatively formal, they can take a relatively long period of time and, in most lawyers’ experience, they are generally thorough. It takes them time to conduct as much investigation as they possibly can prior to confronting the defendants with specific allegations. When they do, it can begin the dialogue towards a potential settlement to the case.

Of course, the Department of Justice is not the only entity conducting whistleblower investigations. It is not even the only entity conducting whistleblower investigations for which a whistleblower could expect or hope to receive an award if the allegations prove to be well-founded.

The Internal Revenue Service conducts investigations of tax fraud pursuant to the IRS whistleblower program. The Securities and Exchange Commission, the Commodity Futures Trading Commission also conduct investigations based on their whistleblower programs. However, there are significant differences in these laws.

What is the IRS Whistleblower Program?

Under the IRS whistleblower program, a whistleblower must sign a form under the Pains and Penalties of Perjury and is not anonymous to the IRS. The IRS nonetheless has generally attempted to protect the whistleblower’s identity.

The IRS is used to keeping documents confidential because it considers tax forms and tax information to be confidential. It tends to treat investigations into tax fraud in the same manner and will follow up and investigate and provide some response to the whistleblower with respect to the status of their investigation.

What is SEC in Relation to the IRS?

The SEC and CFTC, by contrast, allow a whistleblower to provide information to those agencies without revealing who they are to the agencies at least initially. It is possible to be an anonymous whistleblower to the SEC and to the CFTC when reporting through counsel. The difference in these whistleblower laws versus the False Claims Act is that there is no private right of action to conduct a case in court if the government finishes its investigation and declines to pursue the case. Individuals should speak with an attorney regarding the role of government agencies involved in whistleblower investigations to better understand the process.

Independent Rights to Conduct Investigations

If the IRS determines that there is tax fraud, a whistleblower does not have an independent right to go back and conduct discovery against the actor who committed the tax fraud. Similarly with the SEC, it is the SEC’s right to conduct its investigation, not the right of the whistleblower.

While almost every case filed under the False Claims Act results in at least an interview with the relator, this is not always the case with the SEC or the IRS. The average SEC tip is usually somewhat less detailed and less fully developed than a False Claims Act complaint filed in court and perhaps the fact that a whistleblower can remain anonymous allows the SEC to get more information and even more initial tips because such filings are relatively easy to submit. Howevert, at the same time, it may mean that sometimes that information isn’t always fully prepared and fully developed.

What are the False Claims Acts Protections?

There are many other government agencies involved in whistleblower investigations. They create reports and tips even when there is not an award provided to the whistleblower. In any such filing, it is important that a whistleblower determine what rules may be available to them to protect themselves if they want to come forward.

The rights of a whistleblower available under the False Claims Act and under the SEC are strong with respect to participating with the government and working with the government in furtherance of government actions. However, any government investigation and any government investigator will tell them that they are not acting as counsel to the whistleblower

They are acting on behalf of the government and so whistleblowers should seek their own independent advice prior to helping the government investigate any allegations and during such action.