What Should You Not Do as a Whistleblower? Tell the Defendant

One thing we cannot stress enough as attorneys for relators in False Claims Act cases is to respect the seal. As you may know from reading this blog, the False Claims Act requires that any case filed by a qui tam whistleblower has to remain under seal for at least 60 days to give the government an opportunity to investigate the claims and decide whether it wants to intervene and run the case on its own. As we have previously explained, violations of the seal are serious, and if the relator (or his or her attorney) discloses the existence of the lawsuit to a third party, that individual could face sanctions, including dismissal or contempt of court.

False Claims Act

Pretty simple, right? Well, not for everyone. Last week, an attorney from Washington, D.C., Jeffrey Wertkin, was arrested as he attempted to sell parts of a sealed False Claims Act complaint to the defendant, a California-based tech company. Wertkin, a partner at a large D.C. firm and former Justice Department attorney who prosecuted False Claims Act cases should know better than anyone that you don’t violate the seal.

The allegations almost seem as if they were lifted from a John Grisham novel. According to the FBI’s criminal complaint against the attorney, Wertkin called an employee of the defendant in the lawsuit and left a voicemail referencing the existence of a sealed complaint against the company. The employee called back, and Wertkin – using the alias “Dan” – offered to mail the first page of the complaint to prove that a qui tam complaint against the company had been filed. Wertkin then offered to provide the remainder of the complaint for a “consulting fee.” After receiving the first page – and contacting the FBI – the employee contacted “Dan” and negotiated a price of $300,000 for the remainder of the complaint. Moreover, “Dan” asked to be paid in Bitcoin, as it would be untraceable. “Dan” then set up an elaborate scheme whereby he would meet a company representative, “Bill,” in the lobby of a hotel to perform the exchange. I can only imagine “Dan’s” shock when he arrived at the hotel, tendered a copy of the complaint, only to be surrounded by FBI agents charging him with contempt of court. He reportedly told the agents, “My life is over.” No kidding. Reports indicate that he was summarily fired by his law firm.

It isn’t clear from the criminal complaint how Wertkin got ahold of the complaint. Regardless, the lesson here is, again, DO NOT VIOLATE THE SEAL. Don’t tell anyone – family members, friends, even your priest. Unless you have the court’s permission, keep it all to yourself.