In the July 2018 edition of the American Bar Association’s Law Practice Today (LPT), KHF managing member Edward T. Kang is featured in the Meet the Managing Partner column. LPT, a monthly publication of the ABA’s Law Practice Division, is distributed to nearly 500,000 lawyers and law students across the globe each month, including all members of the ABA. This month’s issue is devoted to the theme of diversity and inclusion. Learn more at www.lawpracticetoday.com.
1. What is a Whistleblower?
A whistleblower is a person who, on behalf of the federal government, state government or governmental authority, reports illegal, fraudulent or dishonest conduct by a person or an organization.
2. Importance of Internal Whistleblowers:
Encouraging “watchdog” type behavior from your employees allows your management team to catch on to internal problems early, giving room to make the changes necessary to promote a healthy business model.
- Fraud against the government is not a victimless crime. Like insurance fraud, everybody pays the price for fraud against the government.
- Keep an honest business model.
3. Whistleblower Programs to Keep in Mind:
Program Benefits Common Cases/Schemes
|False Claims Act (FCA)– “Lincoln’s Law”||Can pursue your claims even if Justice Department turns you down as private individual; Receive a percentage of the award received, if there is one (15 to 30%)||Mortgage Fraud; VA Refinance Fraud; Medicare/Medicaid; Fraud|
|Securities Exchange Commission (SEC) Created by Dodd-Frank Act||Can receive award from SEC if the government authorities recover more than $1 million||Issuance of false or misleading statements in financial reports; Insider trading; Ponzi schemes|
|Commodity Futures Trading Commission (CFTC) Created by Dodd-Frank Act||Offers the most protection for whistleblowers who wish to remain anonymous (even to government until award received)||Swap Markets|
|Internal Revenue Service (IRS)||Pays award up to 15% of amount it collects; If the amount collected exceeds $2 million, the IRS will pay 15-30% of amount collected||Off-shore accounts fraud; Corporate tax fraud; Employment tax fraud; Money laundering tax fraud; Filing false or misleading forms|
4. What’s the procedure for bringing a whistleblower action?
A whistleblower files an action under seal and serves it on the government (for FCA only).
1. Compile a small list of attorneys that you find. It’s okay to start with an entire page of attorneys, but narrow down the list by asking friends, family, and business connections their opinions. Figure out if there are any attorneys you should consider or avoid.
2. Do a background check on the attorneys on your list. Use resources like Martindale-Hubbell, Avvo, Lawyers.com, the American Bar Association, and many other sources on the internet, including news articles. Here are some questions to consider as you do your search:
a. Has the attorney been cited for any ethics violations?
As a business owner, you want to make sure that your company successfully continues for generations to come. So, when you eventually retire or step down from your position, it is important to consider how you want to proceed with passing on your business to the next generation. Consider the following five tips.
1. Highlight your goals. Do you plan on passing your business down to your family, or do you prefer to transition to a buyer? Figure out your goals behind transitioning your business well before you intend to pass on your business. You should give yourself ample time to prepare for any obstacles along the way.
2. Create a clear strategy. Create a clear exit plan strategy as you move forward with the transition. Always be sure you have this plan set before you start so you do not run into confusion while transitioning. Consider the following to include in your strategy as you prepare:
When considering creating a social media policy, it is important to keep in mind that you will never be able to completely control social media use by your employees. There are, however, a few ways that you can successfully create a social media policy that will allow you to place legal boundaries around media use.
1. Create a Policy and BE Informative: Notify your Employees that you are creating a policy. Keeping them informed mitigates future “I didn’t know” excuses. Also, employees have the legal right to be informed about any new policy change or creation.
2. BE Informed: Before you start drafting anything, be informed about recent legislation regarding Social Media policies and cases that have created different interpretations of existing policies. Three major examples are:
1. Define your goals. What is your ultimate goal in transitioning your business? Do you plan on funding your retirement through this transition? Is it to leave a legacy? The reason behind your desire to transition will determine how you proceed.
2. Plan & Implement Your Strategies. Create a clear plan as you move forward with the transition. Always be sure you have this plan set before you start so you do not run into confusion while transitioning. Consider the following to include in your strategy as you prepare:
a. Financial. If your goal is towards retirement, how will you be funding it? What will be your compensation as you leave the company? Be sure you highlight financial issues clearly and consult with the appropriate experts to make sure these issues are handled well.