SNITCHING FOR RICHES: WHISTLEBLOWER BOUNTIES AND THE $96 MILLION CHERYL ECKARD SETTLEMENT
Bounties have been employed by United States government over the history of our Nation. As differentiated from rewards, which offer payment for accomplishment of a specific act such as providing information that leads to the capture of a particular criminal, bounties are tailored to encourage the services or actions by some class of persons in pursuance of a governmental purpose. One of the earliest examples in the United States is the grant of bounty land grants during both the Revolutionary War and Civil War. For the purpose of encouraging longer military service, this bounty system ...view middle of the document...
The focus of this paper will be on whistleblower bounties used to protect procurement and securities as enacted through the False Claims Act (“FCA”), the Sarbanes-Oxley Act of 2002 (“SOX”), and Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”)(and collectively as “Acts”). Part I will lay out the framework of the whistleblower bounties as enacted under these Acts, including language of the statutes and the requirements placed upon the whistleblower in order to be eligible for these bounties. Part II will provide a discussion of Cheryl Eckard’s qui tam action against GlaxoSmithKline for violations under the FCA which resulted in the highest whistleblower bounty award to date, $96 million. Part III will examine how the bounty scheme under the FCA in the area of federal procurement has affected the strength and availability of whistleblower bounties as enacted in SOX and Dodd-Frank in the area of securities reform. Finally, in Part IV, I will give my opinion of the effectiveness of whistleblower bounties and whether they over or under incentivize whistleblowing.
I. THE SUBSTANTIVE LANGUAGE AND PROCEDURAL REQUIREMENTS OF THE ACTS
A. The False Claims Act.
The FCA is one of the earliest instances in the United States enacting a law to provide a whistleblower bounty. As enacted in 1863, the primary purpose was to combat fraud (war-profiteering) by suppliers of the United States during the Civil War by permitting citizens to sue on behalf of the government and be paid a percentage of the recovery. At this time, the statute provided that “the person bringing said suit and prosecuting it to final judgment shall be entitled to receive one half the amount of such forfeiture…”.
The FCA has undergone two major amendments, in 1986 and 2009, that have given more clarity to the law. In its most common uses, the FCA provides liability for any person who (a) “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval”, or (b) “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim” to the government. The FCA enforces this statute, in part, by allowing a private person, typically an employee or other agent of the violator with particular knowledge of a violation, to bring suit on behalf of the government, otherwise known as a qui tam action. This qui tam plaintiff, referred to as a relator, is entitled to a bounty between 15% and 25% of the settlement amount in the situation where the government proceeds with the action brought by the relator. In the case where the government doesn’t proceed with the action, the relator is entitled to between 25% and 30% of the settlement amount.
Traditionally there was a bar that limited a relator from bringing a qui tam action under the FCA and thus being qualified to receive any whistleblower bounty resulting from the settlement. The bar was basically two-fold. The allegations or...