CHAPTER 1
False Claims Act: Qui Tam and Retaliation Claims
§ 1.01 Introduction
[1] Overview of the False Claims Act
[2] History and Amendments
§ 1.02 False Claims Act Liability and
Qui Tam Suits
[1] Elements and Examples of False Claims Act Claims
[2] Statutory Bars to Qui Tam Actions
[3] Filing a Qui Tam Claim—The Litigation Process
[4] Damages and Penalties
[5] Relator’s Share in a Successful Qui Tam
[6] Settlement/Release of Qui Tam Claims
§ 1.03 FCA Retaliation Claims
[1] Prohibited Retaliation and Amendments
[2] Prima Facie Case
[3] Limitations Period for FCA Retaliation Claims and Procedural Issues Related to Filing
[4] Pleading Standard
[5] Remedies
[6] Settlement/Release of Section 3730(h) Claims
CHAPTER 2
Sarbanes-Oxley Act of 2002
§ 2.01 Overview
[1] Whistleblower Provision: Section 806
[2] Dodd-Frank Amendments to SOX
§ 2.02 Covered Employer
[1] Publicly Traded Companies
[2] Consolidated Subsidiaries
[3] Contractors, Subcontractors, and Agents
[4] Individual Liability
§ 2.03 Covered Employee
[1] Classification as Employee or Independent Contractor
[2] Extraterritorial Application of Employee Protections
[3] Enforceability of Pre-Dispute Arbitration Agreements with Respect to Covered Employees
§ 2.04 Prima Facie Case
[1] Protected Activity
[2] Adverse Action
[3] Causation
§ 2.05 Litigation Process
[1] Filing and Investigation of Complaint
[2] Determination and Review
[3] Kick-Out Provision
[4] Review of DOL Final Order by Federal Courts of Appeal
[5] Jury Trial
§ 2.06 Available Remedies
[1] Reinstatement
[2] Front Pay in Lieu of Reinstatement
[3] Back Pay
[4] Attorneys’ Fees
[5] Non-Economic and Compensatory Damages
[6] Punitive Damages
CHAPTER 3
The Dodd-Frank Wall Street Reform and Consumer Protection Act
§ 3.01 Overview
§ 3.02 Amendments to the Sarbanes-Oxley Act of 2002
§ 3.03 Securities and Exchange Commission Whistleblower Program
§ 3.04 Securities and Exchange Commission Anti-Retaliation Provision
[1] Scope of Protection
[2] Prima Facie Case
[3] Procedural Requirements
[4] Available Remedies
§ 3.05 Commodity Futures Trading Commission Whistleblower Program
§ 3.06 Commodity Futures Trading Commission Anti-Retaliation Provision
§ 3.07 Consumer Financial Protection Act Anti-Retaliation Provision
§ 3.08 Amendments to the False Claims Act
CHAPTER 4
Consumer and Investor Whistleblower Statutes
§ 4.01 Overview
§ 4.02 Consumer Product Safety Act and Consumer Product Safety Improvement Act of 2008
[1] CPSIA Anti-Retaliation Provision
[2] CPSIA Anti-Retaliation Provision Procedures
§ 4.03 Patient Protection and Affordable Care Act
[1] ACA Anti-Retaliation Provision
[2] ACA Anti-Retaliation Provision Procedures
§ 4.04 Consumer Financial Protection Act of 2010
[1] CFPA Anti-Retaliation Provision
[2] CFPA Anti-Retaliation Provision Procedures
§ 4.05 FDA Food Safety Modernization Act
[1] FSMA Anti-Retaliation Provision
[2] FSMA Anti-Retaliation Provision Procedures
CHAPTER 5
Nuclear and Environmental Whistleblower Statutes
§ 5.01 OSHA-Administered Nuclear Whistleblower Protections
[1] Overview
[2] Covered Employers and Employees
[3] Burden of Proof
[4] Respondent’s Affirmative Defense
[5] ERA Procedures
[6] NRC Investigation of Whistleblower Complaints
[7] OSHA-Issued Statistics on ERA Complaint Determinations
§ 5.02 OSHA-Administered Environmental Whistleblower Statutes
[1] Overview
[2] Burden of Proof
[3] Procedures
[4] Clean Air Act
[5] Comprehensive Environmental Response, Compensation and Liability Act of 1980
[6] Federal Water Pollution Control Act/Clean Water Act
[7] Safe Drinking Water Act of 1974
[8] Solid Waste Disposal Act
[9] Toxic Substances Control Act
[10] Asbestos Hazard Emergency Response Act of 1986
[11] Section 11(c) of the Occupational Safety and Health Act of 1970
CHAPTER 6
Transportation Industry Whistleblower Protection
§ 6.01 Overview
§ 6.02 Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] AIR21 Procedures
§ 6.03 The Federal Railroad Safety Act of 1970 (“FRSA”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] FRSA Procedures
§ 6.04 The Surface Transportation Assistance Act of 1982 (“STAA”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] STAA Procedures
§ 6.05 The National Transit Systems Security Act of 2007 (“NTSSA”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] NTSSA Procedures
§ 6.06 The Pipeline Safety Improvement Act of 2002 (“PSIA”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] The PSIA Procedures
§ 6.07 The Seaman’s Protection Act (“SPA”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] The SPA Procedures
§ 6.08 The International Safe Container Act (“ISCA”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] The ISCA Procedures
§ 6.09 The Moving Ahead for Progress in the 21st Century Act (“MAP-21”)
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] MAP-21 Procedures
CHAPTER 7
Other Federal Whistleblower Protection Statutes
§ 7.01 Overview
§ 7.02 Whistleblower Protection Act of 1989
[1] Overview
[2] Covered Employers and Employees
[3] Protected Disclosures
[4] Covered Personnel Action
[5] WPA Procedures
§ 7.03 Defense Contractor Whistleblower Protection Act
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] Procedures
§ 7.04 Government Contractor and Subcontractor Protections
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] NDAA Procedures
§ 7.05 American Recovery and Reinvestment Act of 2009
[1] Overview
[2] Covered Employers and Employees
[3] Protected Activity
[4] Adverse Actions
[5] Relation to Other Laws and Remedies
[6] ARRA Procedures
§ 7.06 Additional Whistleblower Protections for Federal Government Employees and Contractors
[1] Overview
[2] FBI Whistleblower Protections
[3] Department of Energy Whistleblower Protections
[4] Intelligence Community Whistleblower Protection Act of 1998
[5] Major Fraud Act of 1988
[6] Other Statutes
§ 7.07 Whistleblower Protections for Military Service Members and Employees
[1] Military Whistleblower Protection Act of 1988
[2] Nonappropriated Fund Instrumentality Employees of the Armed Forces
§ 7.08 Whistleblower Protections in the Financial Sector
[1] Federal Credit Union Act
[2] Financial Institutions Reform, Recovery, and Enforcement Act of 1989
[3] Annunzio-Wylie Anti-Money Laundering Act
§ 7.09 Industry-Specific Whistleblower Protections
[1] Overview
[2] Migrant and Seasonal Agricultural Worker Protection Act
[3] Federal Mine Safety and Health Act of 1977
[4] Surface Mining Control and Reclamation Act of 1977
[5] Emergency Medical Treatment and Active Labor Act
[6] Other Statutes
CHAPTER 8
Survey of State Whistleblower Statutes
§ 8.01 Overview
§ 8.02 Alabama
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.03 Alaska
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.04 Arizona
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.05 Arkansas
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.06 California
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.07 Colorado
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.08 Connecticut
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.09 Delaware
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.10 District of Columbia
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.11 Florida
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.12 Georgia
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.13 Hawaii
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.14 Idaho
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.15 Illinois
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.16 Indiana
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.17 Iowa
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.18 Kansas
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.19 Kentucky
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.20 Louisiana
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.21 Maine
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.22 Maryland
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.23 Massachusetts
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.24 Michigan
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.25 Minnesota
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.26 Mississippi
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.27 Missouri
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.28 Montana
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.29 Nebraska
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.30 Nevada
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.31 New Hampshire
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.32 New Jersey
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.33 New Mexico
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.34 New York
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.35 North Carolina
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.36 North Dakota
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.37 Ohio
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.38 Oklahoma
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.39 Oregon
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.40 Pennsylvania
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.41 Rhode Island
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.42 South Carolina
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.43 South Dakota
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.44 Tennessee
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.45 Texas
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.46 Utah
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.47 Vermont
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.48 Virginia
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.49 Washington
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.50 West Virginia
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.51 Wisconsin
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
§ 8.52 Wyoming
[1] Statutory Whistleblower Protections
[2] Wrongful Termination
CHAPTER 9
SEC Whistleblower Incentive Program
§ 9.01 Overview
§ 9.02 Whistleblower Status
[1] Eligible Individual
[2] Voluntariness Requirement
[3] Original Information
[4] Independent Knowledge and Analysis
[5] Procedure for Submitting Information
[6] Confidentiality and Anonymity
§ 9.03 Covered Actions
[1] Successful Enforcement Action
[2] Calculation of Proceeds
§ 9.04 Award
[1] Amount of Award
[2] Procedure for Claiming Award
[3] Preliminary Determination
[4] Reconsideration of Determination
[5] Final Order
§ 9.05 Rules to Support Internal Compliance Programs
§ 9.06 Developments
[1] Agency Interpretations and Actions
[2] Claims and Award Statistics
CHAPTER 10
IRS Whistleblower Incentive Program
§ 10.01 Overview
§ 10.02 Whistleblower Status
[1] Eligible Individual
[2] Voluntariness Requirement
[3] Submitting Specific and Credible Information
[4] Confidentiality and Anonymity
§ 10.03 Covered Administrative or Judicial Action
[1] Successful Enforcement Action
[2] Calculation of Proceeds
§ 10.04 Award
[1] Amount of Award
[2] Procedure for Claiming an Award
[3] Determination Letter
[4] Appeal
[5] Administrative Timeframes
[6] Timing of Payment of Award
§ 10.05 Developments
CHAPTER 11
CFTC Whistleblower Incentive Program
§ 11.01 Overview
§ 11.02 Whistleblower Status
[1] Eligible Individual
[2] Voluntarily Provided
[3] Original Information
[4] Original Source
[5] Independent Knowledge and Analysis
[6] Procedure for Submitting Information
[7] Confidentiality and Anonymity
§ 11.03 Covered Administrative or Judicial Action
§ 11.04 Award
[1] Amount of Award
[2] Procedure for Claiming an Award
[3] Preliminary Determination
[4] Reconsideration of Determination
[5] Final Order
[6] Appeal
[7] Payment of Awards
§ 11.05 Developments
CHAPTER 12
Purloined Documents
§ 12.01 Overview
§ 12.02 Document Acquisition and Dissemination as Protected Activity
§ 12.03 Balancing Test in Title VII and Discrimination Claims
§ 12.04 Evidence Gathering as Protected Activity by Whistleblowers
[1] False Claims Act
[2] Sarbanes-Oxley Act Retaliation
[3] Dodd-Frank Whistleblower Protections
[4] Defend Trade Secrets Act Protections
§ 12.05 Employer Responses to Document Acquisition and Dissemination by Employees
[1] After-Acquired Evidence
[2] Breach of Contract
[3] Breach of Fiduciary Duty
§ 12.06 Retaliatory Counterclaims
§ 12.07 Potential Criminal Liability
§ 12.08 Ethical Issues for Attorneys
CHAPTER 13
Attorneys and Compliance Personnel as Whistleblowers
§ 13.01 Overview
§ 13.02 Ethical Obligations of Attorney/Whistleblowers
§ 13.03 Sarbanes-Oxley Act and the Dodd-Frank Act
[1] Attorney Disclosures
[2] Retaliation
§ 13.04 False Claims Act
§ 13.05 Eligibility for Whistleblower Awards
[1] Attorneys
[2] Compliance Personnel
§ 13.06 Attorneys as Qui Tam Relators
§ 13.07 Responding to a Claim: Employer Defenses
[1] Pretrial and Extrajudicial Measures
[2] Substantive Defenses
CHAPTER 14
Employer Considerations
§ 14.01 Overview
[1] Importance of the Issue
[2] The “Two-Track” Approach
§ 14.02 Compliance Strategies and Preventative Measures
[1] Encouraging Internal Whistleblowing
[2] Effective Complaint Policies and Legal Requirements
[3] Education and Training
§ 14.03 Internal Investigation of the Complaint
[1] The Duty to Investigate
[2] Initiating the Investigation
[3] Issuing a Document Hold Notice
[4] Defining the Scope of the Investigation
[5] Collecting Relevant Documents
[6] Interviewing Witnesses
[7] Oversight of the Investigation
[8] Reporting the Results of the Investigation
§ 14.04 Protecting Privilege
[1] The Extent of Privilege
[2] Challenges to Privilege
[3] Confidentiality Agreements
[4] Limiting Disclosures to Employees During Internal Investigations
§ 14.05 Compelled and Voluntary Disclosure
[1] Mandatory Disclosure Provisions
[2] Agency Leniency Programs
§ 14.06 Interactions with the Whistleblower
[1] Avoiding the Appearance of Retaliation
[2] Disciplining a Whistleblower for Other Misconduct
§ 14.07 Public Relations Considerations
[1] Pre-Planning
[2] Managing the Response
§ 14.08 Settlements
[1] Assessing the Risk
[2] Confidentiality of Settlement Agreements
[3] Labor Department Review of Settlement Agreements
INDEX