Can I Remain Anonymous and Still Blow the Whistle?
It depends. But don’t count on it.
Whistleblowers take on tremendous personal risk to expose corporate wrongdoing. The desire to remain anonymous is understandable. Some of the newer whistleblower reward programs and laws, such as the whistleblower reward programs created by the Dodd-Frank Act and New York State’s amended False Claims Act, recognize this and make the likelihood of maintaining one’s anonymity much greater. Nevertheless, for most False Claims Act whistleblowers, anonymity is unlikely, and it is never guaranteed.
Described below are a number of methods whistleblowers can and do use to guard against disclosure of their identities. If you are considering blowing the whistle, particularly if maintaining your anonymity is important to you, you should consult with a lawyer experienced in representing whistleblowers. They can answer questions about the potential risks and rewards of blowing the whistle and counsel you on the viability of options to increase the likelihood of maintaining your anonymity.
Doe Complaints
A False Claims Act case is initiated by the filing of a complaint under seal. Generally speaking, the case remains under seal, pursuant to court order, while the government investigates the complaint’s allegations, often for years. Once the government has completed its investigation and made a decision whether to intervene in the case or not, the complaint will generally be unsealed and will become a public document. At this point, the whistleblower’s identity will become known. For this reason, a whistleblower may try to maintain their anonymity by filing a “Doe Complaint,” i.e., filing under a pseudonym such as “John Doe.”
There are practical and legal limitations on the viability of this method of maintaining one’s anonymity. Practically speaking, False Claims Act complaints are typically very detailed. Even if the whistleblower’s name is not revealed, the facts known to the whistleblower and alleged in the complaint may make clear who it is. In addition, if the case proceeds to litigation or is resolved by settlement, the whistleblower’s identity will likely be disclosed.
Doe complaints may also face legal challenges. The Federal Rules of Civil Procedure require complaints to “name all the parties.” Doe complaints have been allowed in certain circumstances but can pose risks in False Claims Act cases. For example, courts have held, including in the False Claims Act context, that anonymous complaints are without legal force, leaving such actions at risk of dismissal. See, e.g., United States ex rel. Little v. Triumph Gear Systems, Inc., 870 F.3d 1242, 1249-50 (10th Cir. 2017).
Creating a Corporate Entity to File the Complaint
Another method used by whistleblowers to maintain their anonymity is to create an organizational entity—frequently a limited liability corporation (LLC)—in a state with strong privacy protections for corporate entities and to file the qui tam case naming the LLC as the plaintiff-Relator.
As with Doe complaints, this approach has practical limitations and can pose legal challenges. If the case proceeds into litigation or is resolved through settlement, the identity of the whistleblower behind the corporation is likely to be disclosed. In addition, organizational relators, particularly those created to shield the identity of whistleblowers, may be viewed with skepticism. Such entities have faced legal challenges related to unique aspects of the False Claims Act including the “first-to-file bar” and the “public disclosure bar.”
Sealing a Case
As noted above, False Claims Act cases are filed under seal and frequently remain sealed for years as the government carries out its investigation. However, once the government has made its intervention decision, the complaint is generally unsealed and becomes a public document.
If the government declines and the whistleblower decides to dismiss the case, a whistleblower concerned about personal or professional harm may wish to keep the case under seal. Courts have inherent power to seal court records. However, there is “a strong presumption of public access [] to judicial documents” that can be difficult for whistleblowers to overcome. United States ex rel. Doe v. Horizon Therapeutics PLC, 2021 WL 3500911 (S.D.N.Y. Aug. 9, 2021). Even in cases where the Relator, the government, and/or the Defendant are aligned in their desire to keep some or all of a case under seal, courts may order disclosure.
Dodd-Frank Whistleblower Programs
Unlike the False Claims Act, the whistleblower programs created by the Dodd-Frank Act (overseen by the Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC)) have specific provisions to protect the identity of whistleblowers. For example, as long as they are represented by counsel, whistleblowers may submit their information to the SEC and CFTC anonymously. See 17 C.F.R. §§ 240.21F-7(b), 165.4(b). And, except in specified circumstances, the SEC and CFTC will not disclose “information that could reasonably be expected to reveal the identity of a whistleblower.” 17 C.F.R. §§ 240.21F-7(a), 165.4(a). Even when making award announcements, the SEC and CFTC will not disclose the identities of whistleblowers. However, when disclosure is required, for instance in connection with an enforcement action, the SEC and CFTC may disclose whistleblower-identifying information.
Blowing the whistle on well-funded, well-connected corporations and individuals can be an intimidating and scary process. There are valid reasons to want to remain anonymous when taking on this challenge. The best course is to consult with an experienced whistleblower attorney who can help you assess the availability and potential risks of various options to increase your chances of maintaining your anonymity.
Molly Knobler is Senior Counsel at DiCello Levitt
