The DOJ Is About to Launch a Whistleblower Rewards Program. Here Are Three Key Policies to Incentivize Whistleblowers
Last month, Deputy Attorney General Lisa Monaco announced the Justice Department would be launching a whistleblower rewards program later this year.
“With these announcements, our message to whistleblowers is clear: the Department of Justice wants to hear from you,” said Monaco in her speech. “And to those considering a voluntary self-disclosure, our message is equally clear: knock on our door before we knock on yours.”
Monaco laid out a 90-day sprint for the DOJ to develop and implement a pilot program. However, Monaco’s speech and another by the Acting Assistant Attorney General laid out few concrete rules for this nascent program.
Thankfully, the Department of Justice does not have to start from scratch to get their new program off the ground – successful whistleblower programs already exist at the SEC, CFTC, the Department of Treasury, among other agencies. Below, key policies are listed that have strengthened other whistleblower programs and would set the DOJ Whistleblower Program up for success.
Dedicated Institutional Support
When whistleblowers and their counsel come forward, there should be a dedicated office and team within the larger Department to manage intake, protection, and the distribution of awards.
Without a dedicated office, whistleblowers and their counsel would likely face issues getting whistleblower information processed and protecting them from potential retaliation. In addition, a dedicated office would show institutional buy-in from DOJ leadership and a commitment to the continuity and longevity of the whistleblower program.
Dedicated Funds for the Program and Whistleblowers
Successful whistleblower programs have sufficient and dedicated funds to pay for themselves and the whistleblowers who come forward, typically through a fund or line item.
Whistleblower awards should be able to be paid out from these dedicated funds and a minimum award percentage should be established—the SEC and CFTC whistleblower programs set a minimum award percentage of 10 percent. Also, the whistleblower award should be paid out when the Department of Justice takes an enforcement action to promote speed, efficiency, and certainty.
Protecting Whistleblowers
Many programs, such as the SEC and CFTC offer anonymity to whistleblowers. While there are issues in the context of criminal prosecutions, if the information is not relied on for prosecution and contains no exculpatory evidence, it should be possible to protect a whistleblower’s identity.
While preserving whistleblower anonymity would be a departure from typical False Claims Act cases, the SEC itself notes reporting anonymously is central the success of its whistleblower program. Noted in a 2018 proposal, the SEC said:
“The ability to report anonymously is an additional attractive feature of our program that helps to encourage company insiders and others to come forward by lessening their fear of potential exposure.”
When this program was announced last month, Jacklyn DeMar, President & CEO of The Anti-Fraud Coalition said, “This new program will fill gaps in enforcement, and help unlock the full potential of whistleblowers to detect and defer fraud.”
The Department of Justice has an enormous opportunity to create a world class whistleblower program and achieve its enforcement priorities, and with these policies, whistleblowers will likely feel incentivized to report.
James M. King is the Director of Communications & Digital at The Anti-Fraud Coalition.
