Part two of our Interview with Michael Filoromo of Katz, Marshall & Banks, LLP discussing document collection for pharmaceutical and medical industry whistleblowers.
You can find part one here
CP: Given the breadth of some confidentiality agreements, is reasonableness usually the overriding factor?
Michael: Yes, that is correct. It is worth pointing out that there are things that are clearly unreasonable. For example, you can't simply copy your whole hard drive. You don't need everything to prove your case, and it doesn't sit well with courts.
Similarly, if you have to do something like log in with someone else's credentials to access information, that is definitely going to be a problem if you end up in court. The same is true for disseminating company information that is protected by attorney-client privilege. These are things that are clearly unreasonable.
It is also worth considering that collecting documents can be a protected activity under the law for purposes of a retaliation claim. Under the False Claims Act, for example, you are protected for making efforts to stop fraud on the government, such as though off-label marketing of drugs that the government reimburses. It’s also protected activity to take steps in furtherance of a qui tam lawsuit, such as by gathering the documents necessary to prove that a company is submitting false claims for payment to the government, with the intention of providing those documents to the government.
In some contexts, courts have held that recording conversations that provide evidence of fraud or other illegal conduct constitute protected activity. Employers are likely to have policies in place that prohibit the recording of workplace conversations, but sometimes, there may be no other way to document wrongdoing. If people are not putting anything in writing but they are being cavalier about discussing fraud and that fraud is becoming policy, then you may be able to record those discussions.
So if the evidence gathering is reasonably narrow, and you are being careful about who you share it with, that can actually provide you with protection. In the absence of some bright-line standard, it is understandably difficult for employees to navigate these issues. For that reason, it is important to seek legal counsel before collecting documents. But if you consider the factors we discussed in the first part of our conversation – if you are being careful and reasonable about which documents you access and with whom you share them – then it is more likely than not that you will end up on the right side of the law.
CP: You mentioned one party vs. all-party consent states with respect to recording conversations.
Suppose you are in a one-party consent state, but you call someone in an all-party consent state, can you record that conversation?
Michael: If anyone participating in a conversation is in an all-party consent state at the time, then all parties must consent for the recording to be legal under the laws of all the applicable states. This can be tricky. Imagine a sales rep is driving while on a two-hour conference call. The rep may pass through three different states, and other people on the call may be crossing state lines, too. Even though the vast majority of states are one-party consent, it is still a minefield to record such a conversation. The recording and wiretapping statutes typically carry with them criminal penalties, so it is critical to carefully assess a situation before starting to record conversations without the participants’ consent..
CP: If someone is a whistleblower, and even if they are a successful whistleblower, is it true that they are not protected from prosecution if they have participated in the wrongdoing they are reporting?
Michael: If you voluntarily report the wrongdoing and you didn’t create or direct the illegal scheme, then regulators and law enforcement will appreciate your courage in coming forward with information about the wrongdoing. In fact, the agencies that administer whistleblower programs, such as DOJ and the SEC, recognize that it is very often employees who have participated in wrongdoing who are in a position to know enough about it to help put a stop to it. . This doesn’t mean that speaking out gives you automatic immunity for serious wrongdoing, but very, very few employees who report wrongdoing and assist regulators and law enforcement in correcting it will face legal action by the government..
People can be put in a difficult situation when they are directed to do things that may be wrong. For example a pharma rep may be directed to market a drug off-label. In some cases there is a gray area or some latitude in what you can say, but there are certainly things that are clearly wrong.
So what do you do in those situations? You can complain to your boss, but that can be difficult when your job is on the line – or when your boss is the one pushing the illegal conduct. You can also complain to compliance, but during the pendency of an investigation, you may still face the day-to-day pressure to do something you believe to be illegal. At least from a legal perspective, it’s best to refuse to participate in the misconduct and to report it, since that will best position you to make out a retaliation claim if the company takes some action against you. Of course this is not an easy decision to make, as there is a lot of pressure on employees to “go along to get along” when they are worried about losing their jobs.
Complicity in illegal conduct generally becomes more of an issue the higher up you are in the organization. If you are a corporate officer who knowingly directed people to market a drug off-label, but then you had a change of heart and wanted to report the misconduct, your cooperation could reduce your liability, but likely won’t eliminate it. It could also disqualify you from receiving an award from the government.
CP: How about an instance where there is a sales meeting and a product manager might say that reps could share anecdotal information with physicians about other physicians using the drug for off-label uses. Then suppose the VP of sales says, “No, you can't do that,” and that you should stick to the indications.” So there is a mixed message. Then if the company fires someone for discussing anecdotal information with a physician would the rep who was fired have a way to pursue legal remedy?
Michael: To be able to make out a claim of retaliation if you get fired, you have to have been pushing back against the activity. Being directed to do something wrong and then getting fired for it, even if you received mixed messages, does not give you protection under the law.
Going back to what we were discussing in terms of being complicit, it can be difficult to determine where the line is sometimes. And companies do like to push the line because it helps generate revenue. There is also a lot of sales pressure independent of an explicit instruction to go past the line of what the law allows. But if there is something that is obviously wrong, you have to do something to protect yourself.
The main thing you can do from a legal perspective to protect yourself is to report the illegal conduct up the chain of command or to compliance. Your employer is aware that a concern exists, and that you raised it – you have put the company on notice.
CP: Is there anything else that you thing it is important for our users to know?
Michael: It is important to bear in mind is that there are many things a company can allege against you if you take company documents or disseminate them wrongly. There can be claims for breach of contract, theft, breach of confidentiality, etc., and there may even be criminal implications. If you act reasonably and don’t overreach or overshare, you are protecting yourself as much as possible. Courts have held that a lawsuit designed to silence a whistleblower can itself be a form of retaliation. So there are always threats of reprisal looming, but there may also be protection.
CP: Again it sounds like getting the advice of an attorney early on is a good idea.
Michael: Yes, and preferably before you have collected any documents by taking hard copies, emailing them to yourself, downloading them, etc.
CP: One final thing, I think a lot of people have the idea that if they have a strong whistleblower case, they can go to a law firm and the firm will take the case on contingency. How likely is that?
Michael: It varies from firm to firm and case to case. Where an employee has been fired and they don't have resources to pay hourly fees, a contingency agreement usually makes sense. Even if the individual could potentially afford the legal fees, the client or the firm may still prefer a contingency arrangement. If someone is still employed and is just seeking advice, an hourly fee arrangement is more likely.
The decision will depend on a variety of factors, including the facts of the case, the resources required, the client’s personal and financial circumstances, and the goals of the representation.
CP: Michael, thank you for taking the time to speak with us again.