Being a whistleblower can be a lonely pursuit. You uncover wrongdoing by your employer. You report what you found to your supervisor. He tells you to ignore it and go back to doing your job. But you can’t. You’ve discovered that your employer has defrauded the U.S. government out of millions of dollars. You know that ignoring it isn’t the right thing to do. You’re just not sure what your next step should be.

You talk to your spouse. You ask your best friend for advice. They support you but don’t know how to help. You turn to the internet. You run a bunch of google searches. Hopefully you find this website and this article, because we are here to tell you: If you have information that a company has defrauded the U.S. government, the most important thing you can do is find an experienced whistleblower attorney. If that lawyer is as experienced as she claims, the first thing she’ll tell you is to stay off the internet and stay away from social media.

Social media can be a useful tool for gathering information and connecting with people who share your interests and concerns. But it can also lead you to publicly reveal things, even when your accounts are private. When you are considering blowing the whistle on government fraud, you want to keep your information confidential for as long as you possibly can. Conversations with your attorney are confidential. Conversations on social media are not.

There are several reasons why you want to keep your discovery of fraud out of the public eye.

First, if you do blow the whistle on your employer by filing a False Claims Act case, the law requires that the initial steps be taken in secret, with notice only to the U.S. government. The False Claims Act is one of the most powerful tools for combatting fraud against the federal government. It works by empowering an individual to stand in the shoes of the U.S. government and sue a person or entity that knowingly files a false claim for payment with the U.S. government.

Whistleblowers file what is known as a civil qui tam action, in which the whistleblower acts as a “relator” and pursues a fraud claim against the private company. The whistleblower must file her complaint under seal and serve a copy of the complaint on the U.S. government. This has the effect of keeping the fraud allegations from the public’s view until the U.S. government decides whether to intervene and join the whistleblower’s case, or to allow her to proceed on her own.

When a case is unsealed, the defendant company is served with the complaint. At the initial stages of the case, the company can assert several defenses in an effort to have the case dismissed, before reaching the merits of the fraud allegations. For one, if a similar case was filed against the same defendant before your case was filed, the defendant company will argue that your case is barred by the False Claims Act’s “first-to-file” rule. That provision says that “[w]hen a person brings an action . . . no person other than the Government may . . . bring a related action based on the facts underlying the pending action.” 

If you uncover wrongdoing by your employer, and discuss it in any way on social media, you may tip off other people to the potential False Claims Act case. That could lead to a race to the courthouse to be the first to file a qui tam complaint.

Even if you don’t tip off another whistleblower on social media, your social media chatter could come back to haunt you if the defendant company claims the case should be dismissed due to the public disclosure bar. That provision of the False Claims Act states:

The court shall dismiss an action or claim under this section, unless opposed by the Government, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed—(i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party; (ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or (iii) from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.

Focus on the term “news media.” It is not defined in the False Claims Act and federal courts have interpreted the term in a variety of ways.  While we disagree that “news media” includes social media like Facebook, Twitter, Reddit, and blogs, it is not worth the risk of a court disagreeing. So if you talk about your employer’s wrongdoing on social media before you and your attorney complete your investigation and file a qui tam action, your own posts could create a ‘public disclosure’ even if you don’t have a lot of followers and friends who see it.  Yes, you would still be able to argue that you were the “original source” of the information, and not subject to dismissal because of the public disclosure bar, but it may complicate things down the road and require a judge to decide if you qualified. It’s simply not worth the risk.

Outside the structure of the False Claims Act, you also want to be careful not to tip off your employer that you are considering blowing the whistle on their fraudulent claims to the federal government. You reported to your supervisor and he told you to ignore it. Chatting about what you discovered on social media could lead to harsh retaliation by your employer. The False Claims Act protects employees who discover wrongdoing and file qui tam claims, but the situation can get messy and complicated if the retaliation takes place before you hire an attorney, complete the investigation and file the False Claims Act complaint. You will be better protected by quickly seeking the advice of experienced and savvy whistleblower attorneys who can guide you through the process.

We are experienced in advising whistleblowers on all aspects of the process. We know how to investigate a False Claims Act case. We know how to communicate with the U.S. government about a potential case. We know how to litigate the case once it gets to court. We also are experienced employment lawyers and we know how and what to advise an employee who suspects their employer of defrauding the U.S. government. Our dual expertise makes us uniquely qualified to advise you, should you find yourself in this position.