Can a company be a whistleblower?

The False Claims Act allows it.

The IRS, SEC and CFTC programs do not allow companies to receive rewards.

Shaking hands after finishing up business meeting

The Federal False Claims Act allows both individuals and entities to serve as relator and bring a civil action. It permits “a person” to bring a civil action under the statute. The False Claims Act does not define the term person explicitly. U.S. ex rel. Holmes v. Consumer Ins. Grp., 318 F.3d 1199, 1208 (10th Cir. 2003). However, corporations have long been considered persons for the purposes of civil law. See Cook County v. U.S. ex rel. Chandler, 538 U.S. 119, 125 (2003). Consistent with this conclusion, rewards have been paid to several entities by the Department of Justice.

State False Claims Act do not necessarily follow the federal model.  Some states explicitly define a “person” in their statutes. New York, for example, allows “any natural person, partnership, corporation, association, or any other legal entity or individual, other than the state or a local government.”

Why would a company act as whistleblower?

In some instances, an individual or group of individuals will create an entity in order to protect their privacy and file the qui tam lawsuit under that name. This is not prohibited by the False Claims Act, but there are instances when it is frowned upon. We would be happy to discuss specifics with you if you contact us.

There are other occasions when it makes more sense for a corporation to file instead of an individual. Competitors, customers and consultants can also discover fraud. In many of these cases, it makes more sense to have the company act as the relator.

Ven-a-Care was a Florida pharmacy where they discovered drug manufacturers were reporting false Average Wholesale Prices to the government. Another company moved into the market and took their business. The partners at the company discovered how their competitor was making money and reported it. Ven-a-Care acted as the whistleblower and received nearly $600 million.

SEC & CFTC

Both the SEC and the CFTC require whistleblowers to be individuals. Two or more whistleblowers can report in concert, but they cannot report as a company or other entity if they wish to receive an award. “A company or another entity is not eligible to be a whistleblower.” SEC Rule 21F-2(a)(1); CFTC Rule § 165.2(p)(1).

IRS

Only individuals are allowed to file a claim for a whistleblower award. Corporations, partnerships or other entities are not permitted to receive a reward.

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