American Journal of Trial Advocacy

Photo Credit: Kyle Cushman, How does a Whistle Work?, Sciencing (Apr. 24, 2017), https://sciencing.com/a-whistle-work-4601984.html.

Authored by Morgan A. Matney

Why would an employee decide to blow the whistle on their employer? They may feel that there is so much to lose – a favorable working reputation amongst colleagues and a persona of loyalty amongst current and future employers, just to name a few examples – but what do they have to gain? That depends on the circumstance.

There are some forms of whistleblowing, such as acting as a relator in a qui tam lawsuit, which already has an associated benefit for the whistleblower.[1] However, other areas of whistleblowing have not yet provided such benefits.[2] This has effectively created a “gap,” according to Lisa Monaco, the Deputy Attorney General.[3] Thus, to enhance the potential benefits of whistleblowing and “fill gaps,” the U.S. Department of Justice (“DOJ”) is actively working on a plan to sweeten the deal financially for employees and entice them to give up what information they may have through a new whistleblower program.[4] Additionally, Monaco explained which areas of crime the DOJ is specifically looking to receive information on, naming “criminal abuses of the U.S. financial system, foreign corruption cases outside the jurisdiction of the SEC. . . and . . . domestic corruption cases” as areas of particular interest, while still disclaiming that the DOJ is interested in all federal criminal activity.[5]

On March 7, 2024, Monaco introduced the concept for this new program that will expand the circumstances under which awards can be given in exchange for whistleblower information; the monetary benefit to be gained in this program will come from that which is surrendered by those who committed the criminal acts.[6] While the program on its face seems broadly applicable, it is essential to note that restrictions do exist, and not everyone will be able to reap a reward; there are qualifications specifically provided by Monaco that clarify who the intended program participants are and the circumstances under which they will qualify.[7]

• First, this program will only be applicable to whistleblowing processes that do not include another monetary reward.[8]
• Second, it is only after payment has been made to the victims of the crime, that monetary reward will be provided to the whistleblower.[9]
• Third, only whistleblowers who were innocent of the alleged wrongdoing will be qualified for a program reward.[10]
• Fourth, the program will only reward in light of new and accurate information.[11] Meaning, the whistleblower must be the first to come forward.[12]

Through these qualifiers, the DOJ emphasizes the importance of having serious, honest, and innocent employees come forward.[13]

So, the question now becomes: what should attorneys take from this information? First, attorneys should be sure to keep an eye out for updates on the program. Monaco expressed that the program will officially begin at some point in 2024 after describing the current work on the program “as a ninety-day sprint to develop and implement [the] pilot program.”[14] Acting Assistant Attorney General Nicole Argentieri also gave a speech on March 8, 2024, inviting people to “stay tuned” as she will be providing additional information in the relatively near future.[15] Knowing that more information is to come, attorneys and federal prosecutors, particularly, need to maintain attention and awareness of potential changes that may arise and what the program will ultimately entail.

Next, attorneys and federal prosecutors should be aware of difficulties that may arise with a potential increase in whistleblower-initiated actions. One difficulty is potential hesitation from whistleblowers to move forward and assist the case after discovering they may not be able to remain anonymous due to the nature of a criminal case.[16] A second difficulty is that attorneys still need to give special attention to the information they receive from a whistleblower following the commencement of this program. Whistleblowers can be enticed by the possibility of reward or by other factors, and prosecutors should be particularly diligent in their investigation and information-gathering to ensure that the information they rely on is entirely accurate.[17] This is not to say that prosecutors should assume the rewards will drive intentionally inaccurate claims, as evidence indicates that is not typically true, but prosecutors should still maintain a system for verifying credibility.[18]

Other difficulties that may arise are specifically related to the trial advocacy of federal prosecutors in these cases. One is that such a rise in the number of these actions may lead to a greater workload for federal prosecutors.[19] Specifically, according to Henry Van Dyck, the program “creates a whole new area for defendants to demand discovery of exculpatory information and to cross-examine witnesses at trial on their financial basis.”[20] Federal prosecutors, therefore, need to prepare themselves for such and similar requests and will, again, need to ensure that their cases are air-tight when it comes to credibility. Another difficulty that prosecutors may face is one of creativity and skill – figuring out how to present a whistleblower as a witness “not . . . compromised by the potential that they would be subject to such a large recovery.”[21] While it may seem daunting on this page, creativity is a job description that attorneys are likely very familiar with already, though it may complicate the job at times. To best advocate in trial, federal prosecutors must find a way to appropriately and credibly include whistleblowers as witnesses when doing so would benefit their case. Certainly, other difficulties and changes may arise as more information is released by the DOJ regarding this new whistleblower program.

Ultimately, in light of this introduction by Monaco, federal prosecutors and whistleblowers alike should be certain to turn their attention to the DOJ for the upcoming months. Prosecutors should ensure that they are prepared for the difficulties that may arise in their efforts to diligently prosecute based on the information and claims of whistleblowers, and whistleblowers themselves should watch for new information regarding qualifiers and be ready to come forward. Through this new program, the government is calling all whistleblowers, providing an opportunity for them to be compensated for the risks they take, and opening up a world of possibility for justice to be served.

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[1] The Justice Department, DAG Lisa O. Monaco Delivers Keynote Address at the ABA’s 39th Annual White Collar Institute, YouTube (Mar. 7, 2024), https://youtu.be/sjyIcmqbXRE?si=SDP5NkCUokMzKOCj (referencing forms of rewarded whistleblowing that are already in place and unaffected by the new program); Whistleblower Protections and Rewards, National Whistleblower Center, https://www.whistleblowers.org/whistleblower-protections-and-rewards/ (last visited May 1, 2024) (“In the United States, there are dozens of laws at the federal, state and local levels that offer protections and rewards for whistleblowers.”); see, e.g., Qui Tam Lawsuits – Whistleblower Guide & Qui Tam FAQs, Phillips & Cohen (Sept. 29, 2023), https://www.phillipsandcohen.com/what-is-a-qui-tam-case/ (“If the case is successful, the relator can earn a whistleblower reward.”).

[2] See The Justice Department, DAG Lisa O. Monaco Delivers Keynote Address at the ABA’s 39th Annual White Collar Institute, YouTube (Mar. 7, 2024), https://youtu.be/sjyIcmqbXRE?si=SDP5NkCUokMzKOCj (acknowledging that circumstances without a reward system already in place are those to which this program will apply). 

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. (mentioning qui tam as an example of a process to which this program will NOT apply).

[9] Id.

[10] Id.

[11]Id.

[12] The Justice Department, DAG Lisa O. Monaco Delivers Keynote Address at the ABA’s 39th Annual White Collar Institute, YouTube (Mar. 7, 2024), https://youtu.be/sjyIcmqbXRE?si=SDP5NkCUokMzKOCj (“To be eligible for a reward, you have to tell us something we didn’t already know, and you have to be first in the door”).

[13] Id.

[14] Id.

[15] The Justice Department, Criminal Division Acting AAG Argentieri Delivered Remarks at the ABA’s White Collar Crime Institute, YouTube (Mar. 8, 2024), https://youtu.be/TfaYJ9XcGOQ?si=lgR8ITBtdvzldcIR.

[16] See Dave Michaels, Justice Department to Pay Whistleblowers Who Tip on Corporate Crime, Wall St. J. (Mar. 7, 2024), https://www.wsj.com/articles/justice-department-to-pay-whistleblowers-who-tip-on-corporate-crime-191fc2e5 (“Prosecutor’s won’t be able to promise anonymity to the tipsters because defense attorneys are entitled to information that is important to their client’s case, [Rod Rosenstein] said.”).

[17] See Debunking Whistleblower Myths, Nat’l Whistleblower Ctr., https://www.whistleblowers.org/debunking-whistleblower-myths/ (last visited May 1, 2024) (asserting that “unbiased authorities” need to review information provided by a whistleblower for the purpose of establishing credibility because “[w]rongdoers frequently attack the motives of their accusers and attempt to destroy their reputations”). 

[18] See id. (describing research results regarding intentionally inaccurate claims in one section and explaining the importance of fully vetting information provided by whistleblowers in another section).

[19] Ben Penn, DOJ to Pay Whistleblowers for Corporate Crime Tips (2), Bloomberg L. (Mar. 7, 2024), https://news.bloomberglaw.com/us-law-week/justice-department-to-pay-whistleblowers-for-corporate-crime-tips (quoting Henry Van Dyck).

[20] Id.

[21] Ben Penn, New DOJ Whistleblower Rewards Policy Has Lawyers Gearing Up, Bloomberg L. (Mar. 13, 2024), https://news.bloomberglaw.com/us-law-week/new-doj-whistleblower-rewards-policy-has-lawyers-gearing-up (quoting Fry Wernick).