FDL Book Salon Welcomes Stephen Kohn, The Whistleblower’s Handbook

The Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself
Author: Stephen Kohn
Sunday, April 10, 2011 12:45 pm Pacific time

Welcome Stephen Kohn, National Whistleblowers Center, and Host, Wendell Potter.

The Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself

Wendell Potter, Host:
The only problem I have with Stephen Martin Kohn’s new book, The Whistleblower’s Handbook, is that it hadn’t been published when I was trying to decide two years ago whether or not to take the risk of speaking out against the health insurance industry.
As 60 Minutes Senior Producer Michael Radutzky wrote in a blurb about the book: “Whistleblowers should do two things: call us at 60 Minutes and read ‘The Whistleblower’s Handbook.’ Its 21 rules lay out the game plan for holding institutions accountable while protecting your job.” No one is better qualified than Steve to write this essential book, which is the first-ever consumer guide to whistleblowing. He is one of the leading whistleblower attorneys in the United States and is the executive director of the National Whistleblower Center in Washington. Since 1984 he has successfully represented numerous nationally recognized whistleblowers and has written several other books on the subject.

In the Whistleblower’s Handbook, Steve explains what every potential truth-teller needs to know—from finding the best federal and state laws to understanding the far-reaching Dodd-Frank Wall Street Reform and Consumer Protection Act of 2009 and to being very wary of trusting internal corporate “hotlines” to report fraudulent or illegal activities.
As Steve notes, ignorance of the proper steps to expose wrongdoing too often leads to silence, lost court cases, public embarrassment, and a failure to effect real change. But when done right, whistleblowing has strengthened democracy, protected the environment, and saved taxpayers and investors billions of dollars. Modern whistleblower laws have created a powerful tool for effective grassroots participation. I’m looking forward to hosting this evening’s salon with Steve and asking him a few questions of my own.

Transcript:

86 Responses to “FDL Book Salon Welcomes Stephen Kohn, The Whistleblower’s
Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself”
BevW April 10th, 2011 at 1:58 pm
1
Steve, Welcome to the Lake.
Wendell, Thank you for Hosting today’s Book Salon.
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Wendell Potter April 10th, 2011 at 2:01 pm
2
My pleasure. Thanks for asking me to host.
Steve, thank you for all you have done and for your wonderful new book. To start things off, could you share with us what motivated you to work with and help whistleblowers in the first place?
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Stephen Kohn April 10th, 2011 at 2:01 pm
3
In response to BevW @ 1
Thank you for having me.
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dakine01 April 10th, 2011 at 2:02 pm
4
Good afternoon Stephen and welcome to FDL this afternoon. Wendell, welcome back to FDL. Stephen, I have not had an opportunity to read your book but do have a question. As some quick background, I worked directly for the DoD for a couple of years and was a contractor for DoD for another dozen years after that. I always considered the people like Ernie Fitzgerald as my heroes of government service. When did the calling of the hotlines become the wrong thing to do? Note: while I never called one, at least on the Fed level the Fraud/Loss/Abuse/Waste hotlines seemed legit
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eCAHNomics April 10th, 2011 at 2:05 pm
5
Obama is the worst president ever in terms of punishing whistleblowers, including torture (Bradley Manning), which also has an extreme chilling effect. Do you have any recommendations?
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Stephen Kohn April 10th, 2011 at 2:06 pm
6
In 1982 I worked as a law clerk on a whistleblower project at the Institute for Policy Studies. I had the opportunity to work directly with whistleblowers, and learned (the hard way) that there were very few laws protecting employees who risked their careers for the public good. But I saw the winds of change. It was apparent that both Congress and the courts were slowly coming around to the need for protecting whistleblowers.
From this experience, I was totally impressed with both the courage of the whistleblowers, and their ability to make positive social change.
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Stephen Kohn April 10th, 2011 at 2:11 pm
7
In response to dakine01 @ 4
Hotlines are very controversial. The main reason is that many courts do NOT view calling a hotline as a protected whistleblower disclosure. Thus, many employees who suffered retaliation after contacting hotlines lost their cases in court, as their corporate employers argued that to be a “true” whistleblower, you had to contact the government.
I have always opposed that position, as many whistleblowers use hotlines and should be fully protected under the law.
In Chapter 11 of the book is entitled “beware of hotlines,” not “do not use” hotlines. When administered and managed ethically and independently, hotlines can work.
I hope this is helpful. Steve Login to Reply
waynec April 10th, 2011 at 2:11 pm
8
Do you have any suggestions how PFC Manning could have better protected himself from the problems he is having today?
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whistler April 10th, 2011 at 2:11 pm
9
This is really exciting but I can’t hear anything. Hope I don’t miss it.
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Stephen Kohn April 10th, 2011 at 2:15 pm
10
In response to eCAHNomics @ 5
The treatment of Bradley Manning is MOST TROUBLING. I wrote a blog posting on this, and called for his immediate release from prison on bail pending trial. http://www.whistleblowersblog.org. The key here is to fight to ensure that the U.S. Constitution is fully implemented — both the First Amendment, that protects unpopular “freedom of speech” (including whistleblowing) and those parts of the constitution that prohibit cruel and unusual punishment and that require defendants be offered reasonable bail pending trial.
Public support is the key. The government is not following the constitution in regard to its treatment of Mr. Manning. We also have an Action Alert program, that permit citizens to write to the President, the Secretary of Defense and Congress and demand that Manning be released on bail and that the Constitution be applied in his case. I direct link will be posted to this ACTION ALERT.
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waynec April 10th, 2011 at 2:16 pm
11
I am not implying PFC Manning is guilty.
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Stephen Kohn April 10th, 2011 at 2:17 pm
12
In response to eCAHNomics @ 5
Here is the direct link to the Action Alert “Release Bradley Manning”: http://capwiz.com/whistleblowers /issues/alert/?alertid=35297516
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waynec April 10th, 2011 at 2:17 pm
13
On edit, I am not implying PFC Manning is guilty.
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Stephen Kohn April 10th, 2011 at 2:18 pm
14
In response to whistler @ 9
You will not hear anything. This is just an online text chat. Feel free to type out your question(s) to me.
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Scarecrow April 10th, 2011 at 2:19 pm
15
Welcome Stephen and Wendell,
Where do potential whistleblowers face the most risk? And what should they do to avoid that?
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BevW April 10th, 2011 at 2:20 pm
16
Stephen, who are the whistleblowers? demographics?
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Roy April 10th, 2011 at 2:21 pm
17
Greetings, I contacted the National Whistleblower’s Center for an Attorney referral here in Rhode Island and was told there were none in this area. How can I get help for a Attorney who deals with Whistleblower cases?
Thanks!
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waynec April 10th, 2011 at 2:21 pm
18
I am wondering how PFC Manning could have better blown the whistle and kept himself from being tortured. Login to Reply

Stephen Kohn April 10th, 2011 at 2:21 pm
19
In response to waynec @ 8
Many years ago I worked on a Military Whistleblower Protection Act. A fairly weak law was passed. But under this law all members of the Armed Services can provide information to Members of Congress. Often Members of Congress use their position to alert the pubic as to wrongdoing. That would be one option. Also, there are pre-publication clearance procedures, with the right to judicial review, that can also be used by national security whistleblowers.
He also could have discussed the matter in confidence with an attorney, in order to learn his rights under the First Amendment (which, by the way, applies to all Americans, no matter what the President or the Secretary of Defense may think).
We have helped FBI agents who have top secret security clearances and have been able, with MUCH EFFORT, to have many of their concerns publicly aired.
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Scarecrow April 10th, 2011 at 2:22 pm
20
Are there particular agencies that pose the greatest risks for whistleblowers? And is the problem there the subject matter, the culture, or the leadership?
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Stephen Kohn April 10th, 2011 at 2:22 pm
21
In response to waynec @ 11
Understood!
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waynec April 10th, 2011 at 2:26 pm
22
Thanks for your reply
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Stephen Kohn April 10th, 2011 at 2:27 pm
23
In response to Scarecrow @ 20
RIght now, national security whistleblowers who work for the federal government are at most risk. The current administration is prosecuting some national security whistleblowers as criminals — Moreover, when Congress passed whistleblower protection laws for federal employees, they created a national security exemption. Thus, employees in agencies such as the CIA and NSA have very few rights.
Other agencies that are under political or industry pressure tend to have bad reputations. This includes the Food and Drug Administration, that works closely with the very powerful pharmaceutical and medical devise industries.
We have two Action Alerts on our web page dealing with these issues. We really need support from the public in order to create positive pressure on these agencies — We will post a link to these Action Alerts.
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whistler April 10th, 2011 at 2:27 pm
24
In response to Scarecrow @ 20
OK this is all in writing. Questions why does no one believe that the Merit Systems Protection Board is worth sh-t? If you find out the people responsible for the crimes you discovered are political, are you screwed?
Oops, I think I put this in the wrong place.
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eCAHNomics April 10th, 2011 at 2:27 pm
25
In response to Stephen Kohn @ 12
Thanks for the references.
FDL has also been quite active on the Manning case.
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Wendell Potter April 10th, 2011 at 2:28 pm
26
Steve, your response in which you mentioned the Military Whistleblower Protection Act reminded me of Ron Ridenhour, the soldier who wrote a letter to Members of Congress and also to President and Nixon and the Pentagon about the 1968 My Lai massacre during the Vietnam War. While there were indictments after that, the murders were not revealed until months later and only after Ridenhour started contacting the media. Can Members of Congress be trusted to do the right thing in situations like this?
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Stephen Kohn April 10th, 2011 at 2:30 pm
27
In response to Scarecrow @ 15
FDA Whistleblowers Action Alert: http://capwiz.com/whistleblowers/issues/alert/?alertid=22364531 Whistleblowers’ Pensions Threatened by Intelligence Committee: http://capwiz.com/whistleblowers/issues
/alert/?alertid=35445501
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Stephen Kohn April 10th, 2011 at 2:31 pm
28
In response to BevW @ 16
Whistleblowers tend to be employees with a strong moral code — an internal code of ethics that does not simply accept what his or her employer says as being the truth. Many whistleblowers are deeply religious. Also, many whistleblowers are “accidental.” In other words, they do not initially view themselves as whistleblowers. They are simply trying to do the right thing at work. They find a problem and report it, thinking that higher management wants the bad news. Many think that they will be praised for finding the problem and pointing it out.
The problem comes when these honest and hardworking employees are either directly retaliated against for “doing the right thing” or they are simply told to shut-up and do their jobs without questioning right or wrong.
Many employees will stop here. But others do not. They will become whistleblowers.
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whistler April 10th, 2011 at 2:33 pm
29
Shoot. I can’t get the hang of this thing. I’ll come back later and see what happened. I want to get your book even though it is way too late for me. GTG
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Scarecrow April 10th, 2011 at 2:33 pm
30
Stephen — has there been a significant change in the protection of wb in dealing with Congress since the last election? Which Congressman/Committees or staffs provide the best/worst protections?
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Stephen Kohn April 10th, 2011 at 2:35 pm
31
In response to Roy @ 17
Without trying to simply sell the Handbook, I would recommend buying a copy so you can better understand your legal rights. It is much easier to obtain an attorney when you have an idea of what laws may protect you, and can also point out the evidence you have that can prove retaliation. The Handbook will help with this.
Also, please re-contact the Attorney Referral Service, and tell them that you will accept a referral from an attorney outside of Rhode Island, such as Mass. or Conn. Let them know about this blog posting. For those of you who do not know what the Attorney Referral Service is, please check out the National Whistleblower Center’s web page, http://www.whistleblowers.org and check the section marked “Whistleblower’s Get Help Now.”
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Scarecrow April 10th, 2011 at 2:36 pm
32
In response to whistler @ 29
Hang in there. When replying, use the reply button down and to the right of the comment you are responding to.
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gordonot April 10th, 2011 at 2:36 pm
33
In response to Stephen Kohn @ 28
Yeah, that pesky moral code has just about ruined my career…or saved it, depending on how you look at it. I once alerted the local DA to a pyramid scheme that involved several of my colleagues and the president of my college. There was an investigation and a trial. I ended up being alienated from the power structure and not offered opportunities for growth, but that’s ok – I prefer teaching to administrating.
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Wendell Potter April 10th, 2011 at 2:37 pm
34
In response to Stephen Kohn @ 28
I can vouch for that. It became clear to me that the insurance industry was not interested in operating in more socially responsible and patient-friendly ways. The conventional wisdom within the industry seemed to be that to behave differently might result in smaller profits.
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BevW April 10th, 2011 at 2:38 pm
35
In response to Scarecrow @ 32
Refreshing your browser will show new comments. PC = F5 or MAC = Comd+R
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gordonot April 10th, 2011 at 2:40 pm
36
In response to Wendell Potter @ 34
Heh, the health insurance industry is a bit of a pyramid scheme, huh?
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Stephen Kohn April 10th, 2011 at 2:41 pm
37
In response to whistler @ 24
The MSPB has a terrible reputation. For years it has overwhelmingly ruled against whistleblowers. Here is why:
First, the “judges” who hear the cases are not real judges. They do not even have to be attorneys. There is NO judicial qualification process for the “judges.” They do not have the job security of normal judges, and are clearly not in a position to challenge the Executive Branch of government, like a real judge. We have been working hard to reform this, both by trying to have Congress amend the law to require the appoint of judges under the Administrative Procedure Act (this Act would require that the judges be qualified and would
provide them with job security). We have also worked hard to try to obtain the right of federal employees to have their cases heard in real courts, before juries. That fight continues, and again we ask your support through the ACTION ALERT program as we continue this campaign.
In regard to the political nature of the MSPB process, your point is well taken. The actual Board consists of three members, two who are always appointed by the President, and one who is a the representative of the political party out of office. Thus, here is how it works: Your case is initially heard by a “judge” that lacks the mandated qualifications and independence of a federal court judge. Your appeal is to a Board that is always
dominated by the political party in power. Sound fair???
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pokums April 10th, 2011 at 2:42 pm
38
Wendell, you implied that you could’ve used Stephen’s book prior to your going public… what would you have done differently? Are you a relatively rare WB case where instead of being retaliated against, it launched you to a sortof rockstardom?
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Wendell Potter April 10th, 2011 at 2:42 pm
39
In response to gordonot @ 36
Ha! Yes, the ultimate pyramid scheme. And someday it will collapse.
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gordonot April 10th, 2011 at 2:43 pm
40
In response to Stephen Kohn @ 37
Yikes. How did the rules get set that way?
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Stephen Kohn April 10th, 2011 at 2:47 pm
41
In response to Wendell Potter @ 26
Contacting Members of Congress is often a very good move for a whistleblower. These contacts are protected not only under the Military Whistleblower Protection Act, but under the First Amendment’s clause the protects the right for the people to petition congress. Additionally, the first federal employee whistleblower law, enacted in 1912, permits all federal employees to provide information to Members of Congress.
This said, you still will need to identify a Member of Congress that (a) you can trust; (b) has the courage to do the right thing with your information; and (c) will use his or her office to provide you with protection (i.e. communicating to your employer and letting them know that retaliation will not be tolerated, etc.) This does not always work — and sometimes whistleblowers have to move forward without this level of support.
I strongly recommend that everyone looks at the last chapter in the Handbook, which discusses in detail the story of America’s first whistleblowers (back in 1777) and what happened when they blew the whistle to the Continental Congress).
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gordonot April 10th, 2011 at 2:49 pm
42
a Member of Congress that (a) you can trust; (b) has the courage to do the right thing with your information; and (c) will use his or her office to provide you with protection You’re kidding, right?
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Stephen Kohn April 10th, 2011 at 2:49 pm
43
In response to Scarecrow @ 30
In regard to Congress, it is issue by issue. If a Member of Congress supports the issue you are blowing the whistle over, they may support you. Very few Members support “whistleblowers” in the abstract. But if your concerns are over an environmental issue, a Member of Congress who is passionate over that issue may become your champion.
Overall, Senator Charles Grassley has the best reputation for helping whistleblowers in Congress.
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Wendell Potter April 10th, 2011 at 2:49 pm
44
Believe it or not, I didn’t have a lawyer when I started speaking out. I quickly “lawyered up” after my Senate testimony, though, as they say on Law & Order. One of the things going for me is that I had work in the media and with the media all my career. I knew a lot of reporters and producers and they knew me. I guess I was probably more at ease in dealing with the press than some people would be.
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slide April 10th, 2011 at 2:51 pm
45
I am a Whistleblower. I have reported serious criminal activity to various law enforcement and/or bar assoications where it involved attorneys. I am experienced at evidence and always presented crediable evidence in a form that was simple. I have never been successful in the enforement agencies investigating.
They do take affirmative action to cover up the criminal activity. But, almost without exception the person or persons I was reporting were powerful. I have also found that judges hate people who blow the whistle on powerful people. I think it is great that you are part of an organization that assists whistleblowers. Being a whistleblower is a thankless task.
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Stephen Kohn April 10th, 2011 at 2:52 pm
46
In response to gordonot @ 40
Bad deals — bad compromises. The basic framework for federal employees was established in 1978 – under the Civil Service Reform Act.
But the good news is that since then there have been very strong whistleblower protection laws covering government contractors and private sector workers. We are now trying to get Congress to apply these legal precedents for federal workers.
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Stephen Kohn April 10th, 2011 at 2:56 pm
47
In response to gordonot @ 42
Believe it or not, some Members of Congress had done the right thing for whistleblowers. Not all — but some.
The problem is, where does the whistleblower go for help — If there is a strong law, the courts can work. But if there is not a strong whistleblower law, what are you to do?
In the Fred Whitehurst case, Dr. Whitehurst blew the whistle on the FBI crime lab. At the time, there were no recognized protections for FBI whistleblowers. Dr. Whitehurst was exposing forensic fraud that corrupted the findings of thousands of cases. He was at extreme risk of losing his job. During the height of the controversy
Senator Grassley took to the floor of the U.S. Senate and challenged the FBI. He warned the FBI that there would be “endless oversight wars” if Dr. Whitehurst was fired.
Believe me, when there is nothing else out there, support from a Member of Congress can be key to a case.
Does this happen in every case, absolutely not. But it would be a mistake just to shut the door on this option.
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waynec April 10th, 2011 at 2:57 pm
48
Thank you , Mr Kohn
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gordonot April 10th, 2011 at 2:57 pm
49
In response to slide @ 45
I hear you. I remember telling the story about exposing the pyramid scheme in my community at a conference and being shocked when my audience chided me for being snitch. The pyramid scheme involved very powerful community leaders ripping off and intimidating their employees and the poor folks in a mad get-rich-quick fever. I don’t tell the story much anymore.
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gordonot April 10th, 2011 at 2:58 pm
50
In response to Stephen Kohn @ 47
Yeah, sorry for my knee-jerk cynicism. You are right, of course.
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Stephen Kohn April 10th, 2011 at 3:00 pm
51
In response to Wendell Potter @ 44
Wendell — You are absolutely correct — the press can be key to a successful whistleblower case — and your knowing how to communicate with the press was a great advantage.
One of my earliest cases concerned a worker at a nuclear weapons facility — at the time these workers had no protection under federal law (the law was subsequently changed, in large part due to the courage of this whsitleblower — his name was Roger Wensil).
In that case, I informed a reporter what happened to Roger, and provided documents. The reporter ran major stories in the Washington Post, and this forced the Department of Energy to open a review of the case — and eventually forced the contractors at issue, DuPont and the B.F. Shaw Co. to reinstate Roger Wensil.
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gordonot April 10th, 2011 at 3:02 pm
52
I suppose you’ve studied the Sibel Edmonds case.
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slide April 10th, 2011 at 3:02 pm
53
In response to gordonot @ 49
Your situation is very near to one of my whistleblowing episodes. It also was community where the most powerful member had commited federal grant fraud on a community project. I got up in front of the community members and laid out the explicit proof and I was practically booed out of the room. The guy even admitted the crime but the people did not care. So I sued because the fellow had used me unknowlingly to perpatrate the fraud. The judge moved to protect the criminal.
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Stephen Kohn April 10th, 2011 at 3:07 pm
54
In response to slide @ 45
How right you are!!! But the key is trying to find the law that may actually help you. Sometimes there are none, but often there are. Here are some ideas: Some whistleblower laws are administered by the Department of Labor. The DOL judges tend to be well
qualified and independent. They also usually do not reside in the geographic area where the whistleblower dispute arose. For example, we did a number of highly controversial nuclear safety whistleblower cases in Georgia and Arizona. The corporate lawyers in these cases were used to working within the local judicial community, and getting there way. They worked with the largest firms in the state, and judges were reluctant to take them on.
However, under the DOL procedures, our judges were NOT from Georgia or Arizona. They came in from out-of-state, from cities such as Cincinnati. The appeals were heard in Washington, D.C., not Atlanta or Phoenix.
It was funny to watch the reactions of these high-priced corporate lawyers when their local contacts no longer worked. One of the firms actually got caught subordinating perjury, and the law firm lost its contract with the utility.
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gordonot April 10th, 2011 at 3:11 pm
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In response to Stephen Kohn @ 54
Familiarity breeds corruption, huh? Old Uncle Jake will owe you a favor if you do him one, and besides, he knows about that still behind my property.
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Wendell Potter April 10th, 2011 at 3:12 pm
56
In response to Stephen Kohn @ 54
I love this story. Having worked for years with corporate lawyers and outside counsel, I can imagine how you must have enjoyed watching the utilities’ lawyers not having their usual way with the judges.
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Roy April 10th, 2011 at 3:12 pm
57
Thanks, I did purchase The Whistleblower’s Handbook and I used some of the information I found in the book in my complaint to the United States Court of Appeals For the First Circuit Court since the United States District Court For The District Of Rhode Island closed my case. My case is a perfect example of the corruption in the Judical System. The District Court For The District Of Rhode Island has the evidences I provided. I knew there was sometime going on when the Judge assigned to my case had worked for the Defendants Law Firm, which I had dismissed due to interest. I contacted my US Senator Sheldon Whitehouse office and provided all the documentation and requested a meeting back in July 2010. I am still waiting to have that meeting. It’s me vs. Mega Bank and Mega Bank has the court system here in Rhode Island in its hip pocket.
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tuezday April 10th, 2011 at 3:13 pm
58
Can you offer any insight as to what is ahead for Bradley Manning, and Julian Assange for that matter.
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Stephen Kohn April 10th, 2011 at 3:13 pm
59
In response to gordonot @ 52
I had the honor of representing Sibel when she provided information to Senator Grassley and during the Department of Justice Inspector General investigation of her case. As you most likely know, she won her case in front of the Inspector General. The IG found that she was the target of illegal retaliation. Unfortunately, the Executive Branch invoked the State’s Secret privilege. This little known “privilege” (which does not exist in the Constitution) permits the Attorney General to file an affidavit in court seeking the dismissal of a case on national security grounds. The district court approved the Attorney General’s motion
and threw out Sibel’s case. This was a tragic miscarriage of justice. Again, we at the National Whistleblower Center are trying to fix this defect in the law. One method is to force the Congress to enact meaningful protections for national security whistleblowers that would shield them from the State’s Secret privilege. Again, I would ask that you sign-up for the NWC’s ACTION ALERT program, to get information on how to join the public campaign to change these laws.
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Wendell Potter April 10th, 2011 at 3:14 pm
60
Speaking of corporate lawyers, when I was at CIGNA, the lawyers always apprised me when a qui tam suit had been filed. Can you explain what makes a case a qui tam case?
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gordonot April 10th, 2011 at 3:15 pm
61
In response to Stephen Kohn @ 59
sign-up for the NWC’s ACTION ALERT program
I’m there!
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Stephen Kohn April 10th, 2011 at 3:16 pm
62
In response to Roy @ 57
Roy — please re-submit your information to the Attorney Referral Service, and make a note of this conversation. I will take a look at the material. It sounds bad– and I may not be able to help. But I would be more then glad to give it a second look and see if there are any better options. Because this salon is not covered under the Attorney Client privilege, it would be best to use the ARS process, as those communications are managed by a non-profit law firm (the National Whistleblower Legal Defense and
Education Fund) and those communications can be help in confidence.
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Stephen Kohn April 10th, 2011 at 3:17 pm
63
Link to join the NWC’s Action Alert Network: http://www.whistleblowers.org
/index.php?option=com_content&task=view&id=411&Itemid=124
The National Whistleblowers Center (NWC) emails updates periodically to keep you informed about the issues we are working on and to let you know about upcoming events and action alerts.
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slide April 10th, 2011 at 3:18 pm
64
In response to Stephen Kohn @ 54
Thanks for your reply. One advantage you have is that you are a member of the bar and I am not. Even though I am an experieced litigator, both trial and appellate, I am at a serious disadvantage being pro se. I worked in the law for over 30 years, but not as an attorney, but often doing the work of an attorney (for attorneys) and the only thing I needed to do was become familar with procedures, statutes and case law.
Judges are hostile to me especially being competent, but a non-lawyer even though my cases are always well supported with both the facts and the law. Being a whistleblower is a very difficult proposition under any set of circumstances and is frequently, if not always, met with retalitation. Two years ago one of the persons I was attempting to expose tried to burn down my home….with me in it. I could not even get the authorities to investigate even though the crime was reported to the state police by a deputy state attorney general.
Amazing.
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gordonot April 10th, 2011 at 3:22 pm
65
In response to slide @ 64
Sounds like you got a bad case of the moralcode! Some might joke that you need to see someone about that – but I know how valuable the sort of work you do is for our society – it’s crucial! So I applaud you.
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slide April 10th, 2011 at 3:25 pm
66
In response to Roy @ 57
I can certainly relate to you Roy. I have seen so much corruption in the federal court system and state courts that it is a real eye-opener. The problem is that you always get labeled as a sore loser. I am anything but a sore loser but I hate losing when it is corruption at work.
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Roy April 10th, 2011 at 3:25 pm
67
Thank you Stephen, will do!
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slide April 10th, 2011 at 3:27 pm
68
In response to gordonot @ 65
Morals and integrity are essential and never to be lost. Those are two things they can’t take from you.
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Stephen Kohn April 10th, 2011 at 3:31 pm
69
In response to Wendell Potter @ 60
Qui tam simply means “in the name of the King.” Qui tam lawsuits refer to whistleblower claims filed under the False Claims Act. These lawsuit pack a big punch, and I am not surprised that CIGNA lawyers were concerned about them.
The False Claims Act is the strongest whistleblower law in the United States. It covers fraud in government contracting and procurement. It has a “whistleblower rewards” provision that permits whistleblowers not only to defend their jobs, but to obtain very large financial rewards, if they prevail. The law permits the following: Whistleblowers can file their case in federal district court and seek a jury trial. The venue procedures are very
liberal and it is often possible to pick a good judicial district for filing the claim.
The Department of Justice must investigate the case. If they find merit to your allegations the DOJ joins the case and takes over the lawsuit against the corrupt government contractor. The whistleblower still remains part of the lawsuit, but the DOJ has the primary responsibility over the case.
If the contractor is found liable, they must pay THREE TIMES the amount of the damage. Thus, if a contractor engages in a one million dollar fraud, the contractor owes the government three million dollars. The whistleblower is entitled to a reward for turning in the corrupt contractor. That reward is between 15-30% of the amount recovered. Thus, if a case against a contractor is settled or resolved for 10 million dollars, the whistleblower is entitled to a reward of between 1.5 to 3 million dollars.
This is not simply “pie in the sky.” Since 1986, when the law was amended to permit whistleblower rewards, whistleblowers themselves have obtained $2.7 billion dollars in rewards. That’s right. The whistleblowers have collected $2.7 billion. This is not to mention the fact that the law provides for job protection, and has permitted the taxpayers to save billions and billions of dollars.
This law proves that whistleblowing can and does work. Because the False Claims Act has been so successful in exposing fraud in government contracting and procurement, 25 states (and the District of Columbia) have passed local versions of the law, and Congress recently enacted “qui tam” laws for tax fraud and Wall Street fraud (i.e. securities and commodities fraud).
But you must be careful when using these most powerful laws. Corporations understand the power of this law, and will spend millions of dollars on cases trying to defeat them. There are many loopholes. In the Handbook, I stress the importance of these whistleblower-reward laws. Chapters 2, 6-8 all explain how they work. Chapter 21 provides information on how successful these cases have been. Checklist 1 sets forth all the federal and state whistleblower reward laws, and checklist 4 sets forth the types of fraud covered under
the False Claims Act.
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Stephen Kohn April 10th, 2011 at 3:35 pm
70
In response to slide @ 68
How true. Doing the “right thing” is so important — that is one of the reasons I wrote the Handbook. As a lawyer, it is very hard to meet with client after client who did the “right thing,” but made simple mistakes that resulted in losing a case, such as failing to file a claim timely or failing to discover that there were obscure federal or state laws that could have been used.
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gordonot April 10th, 2011 at 3:37 pm
71
Thanks for your book, I will add it to our school library.
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Stephen Kohn April 10th, 2011 at 3:39 pm
72
In response to gordonot @ 71
Thank you for your kind words!!!
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Wendell Potter April 10th, 2011 at 3:41 pm
73
Steve, does the Dodd-Frank Wall Street reform law provide new protections to whistleblowers? What’s your opinion overall of the Dodd-Frank law?
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Stephen Kohn April 10th, 2011 at 3:42 pm
74
In response to slide @ 66
Don’t give up. In the words of Frederick Douglas, “justice does not sleep forever.” Sometimes the legal system simply cannot do its job. That is why the Whistleblower Center works both sides — the advocacy (trying to get better laws or trying to call public attention on the plight of a whistleblower) and tries to network whistleblowers with competent attorneys. Unfortunately, many judges are very hostile to whistleblowers, and many laws are very weak. We have a long way to go!!!!
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slide April 10th, 2011 at 3:43 pm
75
In response to Stephen Kohn @ 70
I have yet to lose a case where I made a mistake such as timely filing, failing to file a claim under the state tort claims act or any other “mistake”. The major problem I have had is that judges make law up where it does not exist. For instance a federal judge determined a non-profit corporation was entitled to the benefits of the state tort claims act when there was no question the non-profit was not a municipality. And the appellate court simply refused to review the issue. I am not an expert but I make damn sure I don’t make stupid
mistakes. Judges hate pro se litigants and will do everything in their power to deny pro se’s any relief. Too bad but that is the way it is.
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slide April 10th, 2011 at 3:45 pm
76
In response to Stephen Kohn @ 74
Thanks for the encouragement. I won’t give up until the appellate courts diss me.
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BevW April 10th, 2011 at 3:54 pm
77
As we come to the end of this informative Book Salon, Stephen, Thank you for stopping by the Lake and spending the afternoon with us discussing your new book and the National Whistleblower’s Center. Wendell, Thank you for returning and for Hosting this great Book Salon.
Everyone, if you would like more information:
Stephen’s book and the National Whistleblower’s Center
Wendell’s webpage and book
Thanks all,
Have a great week!
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Stephen Kohn April 10th, 2011 at 3:55 pm
78
In response to Wendell Potter @ 73
The Dodd-Frank Act, which was the major Wall Street reform law enacted in the Summer of 2010, constituted a major breakthrough for whistleblower protections. The law contained SEVEN whistleblower provisions, all very good. Here is what they are:
Securities Exchange Act (SEA): A Whistleblower Rewards law, permitting employees who file whistleblower claims with the Securities and Exchange Commission the right to obtain a “reward” of between 10-30% of the amount of monies obtained from the fraudsters.
Commodity Exchange Act (CEA): A nearly identical reward provision, but this one covers fraud in the sale of commodities (such as oil and gas futures trading, the trading of mortages and gold, etc. ).
SEA: Anti-retaliation provision, that protects employees from wrongful discharge who provide information to the SEC about fraud. The law permits employees to file their claims in federal district court and obtain a jury trial.
CEA: Similar anti-retaliation provision, but covers claims filed with the Commodity Futures Trading Commission.
SOX: The law amended the Sarbanes Oxley corporate whistleblower law, to explicitly permit jury trials and coverage of both publicly traded corporations and their subsidiaries.
False Claims Act: The Dodd-Frank Act clarified the statute of limitations for filing a retaliation case under the FCA.
Consumer Protection: The law included a new whistleblower provision covering fraud in financial consumer products — it is very broad.
Overall, Dodd-Frank offers excellent whistleblower protections.
However, the SEC is about to publish rules — and we are very concerned that the SEC is bending to corporate pressure and will weaken whistleblower rights.
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Stephen Kohn April 10th, 2011 at 3:56 pm
79
In response to BevW @ 77
THANK YOU VERY MUCH!!!!!!!!
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Stephen Kohn April 10th, 2011 at 3:58 pm
80
In response to Stephen Kohn @ 78
One last point — In regard to Dodd-Frank, we will be issuing a new ACTION ALERT to the SEC, asking the Securities and Exchange Commission to resist the corporate pressure and issue rules favorable to whistleblowers —- please help!
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Dearie April 10th, 2011 at 3:58 pm
81
Thanks for this interesting discussion. And keep up the good work.
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Wendell Potter April 10th, 2011 at 3:59 pm
82
Steve, this has been terrific. Thanks for taking the time to do this, and best wishes. There are many of us who are grateful to know you are there. I look forward to meeting you one of these days. Wendell
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tuezday April 10th, 2011 at 4:00 pm
83
Stephen thank you for opening my eyes to a travesty I previously had no knowledge of. I did sign up for email alerts. Also, I think it’s fabulous that actual whistle blowers showed up to flesh this out. On edit: thank you on multiple levels.
Wendell, I think you are a national treasure. I realize that doesn’t pay the rent but isn’t a warm, fuzzy feeling worth something?
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Wendell Potter April 10th, 2011 at 4:00 pm
84
Steve, one last thing. Let me know if I can be of help. To you or your clients.
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Stephen Kohn April 10th, 2011 at 4:01 pm
85
In response to Wendell Potter @ 84
Wendell – Thank you so much. I have great admiration for what you’ve done and will be in contact soon.
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Wendell Potter April 10th, 2011 at 4:01 pm
86
In response to tuezday @ 83
Thank you. There’s nothing better than that a warm, fuzzy feeling–and being able to sleep well at night.
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