Whistleblowers play a critical role in exposing fraud and misconduct, often risking their careers and reputations in the process. Understandably, many potential whistleblowers are concerned about the risks of retaliation and seek ways to protect their identities when stepping forward.
A common question our whistleblower attorneys receive is whether a whistleblower can remain anonymous. The short answer is that whistleblowers can, in many cases, protect their anonymity, but the degree of protection varies depending on the type of claim and the law under which it is filed.
Anonymity Under Key Whistleblower Programs
Several U.S. laws allow whistleblowers, also known as relators, to file claims anonymously, particularly in cases of securities fraud, commodities fraud, and tax fraud. Among the most prominent laws are the False Claims Act, the Dodd-Frank Act governing whistleblower programs under the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC), and the IRS whistleblower program.
False Claims Act: Confidentiality, Not Absolute Anonymity
Whistleblowers filing claims under the False Claims Act (FCA), which addresses fraud against the government, enjoy initial protections for their anonymity. FCA lawsuits, also known as qui tam actions, are filed “under seal,” meaning the whistleblower’s identity and the details of the case are kept confidential during the government’s investigation, typically for at least 60 days. In many cases, this seal period is extended for several months or even years as the government thoroughly investigates the claims.
However, once the government decides whether to intervene in the case, the complaint is often unsealed, and the whistleblower’s identity may become public. In some instances, a whistleblower can petition the court to keep the case under seal, especially if there are concerns about personal safety or severe retaliation. Additionally, some whistleblowers choose to file their claims through an organization or business entity rather than in their own names, which can provide an extra layer of anonymity for a period of time. Nevertheless, permanent anonymity in False Claims Act cases is rare.
SEC and CFTC Whistleblower Protections
The Dodd-Frank Act provides significant protections for whistleblowers who report securities fraud to the SEC or commodities law violations to the CFTC. Under these programs, whistleblowers may file claims anonymously, provided they are represented by an attorney. The attorney acts as an intermediary, submitting information on the whistleblower’s behalf, which helps shield the whistleblower’s identity during the initial stages of the investigation. If the whistleblower qualifies for an award, they can still receive it without ever disclosing their identity to the public or the company involved.
These programs offer strong confidentiality provisions. The SEC and CFTC are legally obligated to protect information that could reveal a whistleblower’s identity unless disclosure is required as part of a court proceeding. Even then, regulatory agencies strive to limit exposure whenever possible. This confidentiality framework has been highly effective in protecting whistleblowers, as evidenced by the SEC’s long track record of issuing sanctions against companies that attempt to identify whistleblowers.
IRS Whistleblower Program
While the IRS whistleblower program does not allow anonymous filings, it does offer robust confidentiality protections. The IRS is required to fully protect the whistleblower’s identity by law. Although a whistleblower’s identity may become known during the course of an investigation, it is typically kept confidential throughout the process. For those reporting tax fraud or other violations under IRS jurisdiction, this program has earned a solid reputation for maintaining whistleblower confidentiality.
Risks to Anonymity in Whistleblower Lawsuits
While many whistleblower programs provide strong protections, maintaining anonymity can be challenging. Internal reporting mechanisms within companies, for instance, often do not guarantee confidentiality and may expose whistleblowers to retaliation. Similarly, whistleblowers who discuss their claims with the media or on social platforms risk losing their anonymity. Journalists are not bound by the same legal protections as attorneys, and once a case becomes public, the whistleblower’s identity may be uncovered.
For this reason, it is essential that potential whistleblowers consult with an experienced attorney before making any disclosures. A skilled attorney can guide you through the process, ensuring that your rights are protected and that you take the necessary precautions to maintain confidentiality.
Protecting Yourself: Filing Anonymously as an Organization
One option for whistleblowers seeking greater protection is to file their claims as an organization or business entity rather than as an individual. This tactic is sometimes used in False Claims Act cases and may provide an additional shield against public exposure. However, it is important to note that while this approach can delay the disclosure of a whistleblower’s identity, it is unlikely to ensure permanent anonymity.
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Published By
Attorney Mark A. Strauss
Mark is a battle-hardened and tenacious anti-fraud attorney with more than twenty years of experience in complex civil litigation. He has represented qui tam whistleblowers under the False Claims Act as well as victims of fraud under the federal securities laws and the Racketeer Influenced and Corrupt Organizations Act (RICO). His efforts have resulted in the recovery of hundreds of millions of dollars for clients.
Practices
Whistleblower Practices
- False Claims Act Whistleblower Lawsuits
- Customs Fraud
- COVID-19 Relief Fraud
- Healthcare Fraud
- Government Contracting & Procurement Fraud
- Grant Fraud
- Federal Credit Assistance Fraud
- Securities Law Violations & the SEC Whistleblower Program
- Tax Fraud & the IRS and New York State Whistleblower Programs
- State False Claims Acts
