The Truth Shall Set You Free: Western District of Virginia Unveils Whistleblower Pilot Program

Much has been written in recent months about the Department of Justice’s national Whistleblower Rewards Program, including a recent article I co-authored with Mike Gill entitled 7 Strategies to Comply with the DOJ’S New Whistleblower Rewards Program.

As the former Affirmative Civil Enforcement and Civil Health Care Fraud Coordinator in the Western District of Virginia (WDVA), I handled whistleblower claims and allegations daily. I spent years investigating complex fraud schemes that affected federal and state funds in a host of different industries (healthcare, military equipment, pharmaceuticals, energy, environmental issues, etc.). Many of those cases started (and some ended) with whistleblowers.

Given the developments in this area in recent months, the Woods Rogers Government & Special Investigations team has been eagerly awaiting the WDVA’s policy (pdf) to offer a few observations. Importantly, WDVA’s program focuses on rewarding reporting of individual or corporate crime that (1) involves public or private companies involved in fraud that affects a host of industries (including financial institutions, investment advisors, or matters affecting market integrity, etc.), and (2) involves state or local bribery or fraud related to federal, state, or local funds (in any industry).

Key Points of the WDVA Whistleblower Pilot Program

Like the DOJ policy, WDVA’s pilot program offers some guidance and guardrails for disclosing criminal conduct in exchange for the possibility of self-preservation through a potential non-prosecution agreement. Here are the key provisions to keep in mind:

1. The WDVA policy offers the carrot of possible non-prosecution if an individual discloses criminal conduct that was unknown by the WDVA or DOJ.
2. If law enforcement (federal or state) has started poking around, any disclosure is likely too late as this policy truly focuses on unknown and unreported conduct.
3. If you come forward with unique and unknown information about criminal conduct, you must sign up for the long haul. WDVA expects you to cooperate, be fully transparent, and be prepared to testify against others.
4. You also cannot hold back any information. You must give complete information about all criminal conduct known to you.
5. If you are an elected or foreign official, in law enforcement, or a senior executive (such as CEO or CFO) at a public or private company, you are not eligible for a non-discretionary non-prosecution agreement under the policy.
6. If the offenses you are disclosing involve violence, the threat of violence, sex offenses, or terrorism, you are also out of luck. So too is any individual that has been previously convicted of any felony involving violence or the threat of violence, sex offenses, terrorism, or fraud and dishonesty. Bottom line: there is no protection for you.
7. You must be prepared to give up the proceeds of the wrongful acts you may be reporting and be prepared to pay restitution to victims.

Prosecution Under the Program

WDVA’s program also offers the possibility of obtaining a discretionary non-prosecution agreement even where an individual may not meet all criteria listed above. Put another way, the policy does not hamstring WDVA prosecutors from seeking approval from management for offering non-prosecution agreements based on a host of factors listed in the policy and in the Justice Manual.

Finally, WDVA evaluates any self-disclosure by committee. The committee consists of the First Assistant U.S. Attorney, the Criminal Chief of WDVA, and the Managing Assistant U.S. Attorney. Aside from the U.S. Attorney, these three individuals are the three most senior supervisors within the WDVA.

The combined experience of the committee helps ensure (1) consistency in treatment across cases, (2) a common audience for all self-disclosures, (3) consistency despite possible administration changes, and (4) the requirement for majority consensus (i.e., no one individual makes the final decision).

The Value of Inside Information

WDVA’s policy is a welcome addition to the ever-growing menu of options facing individuals that possess knowledge of criminal conduct, even if that individual has participated in illegal conduct. This policy represents a recognition of the value that insider information brings to successful enforcement of the law and will undoubtedly lead to the disclosure of otherwise undetectable crime that affects our local, regional, and national interests and economy.

Nevertheless, it is never advisable to approach a self-disclosure alone or without obtaining informed legal advice about your options. While the truth may ultimately set you free, getting to that point can be messy and fraught with obstacles you shouldn’t face alone.

The Woods Rogers Government & Special Investigations team is ready to protect you.