Move over bachelors, idols and survivors. There are new players in the reality television world.
They are whistleblowers, who along with the help of their plaintiffs counsel have brought successful qui tam suits under the False Claims Act against companies that have allegedly defrauded the federal government.
CBS broadcast this month the first episode of “Whistleblower,” which the network’s publicity materials describe as taking “a thrilling look into the real-life David vs. Goliath stories of heroic people who put everything on the line in order to expose illegal and often dangerous wrongdoing when major corporations rip off U.S. taxpayers.”
“Blow the whistle, change the world,” on-camera host Alex Ferrer, a lawyer from Boca Raton, Florida, and former police officer, tells an audience as the ending tagline on the first show that aired on July 13.
Ferrer, who once worked as an associate at Stroock & Stroock & Lavan and served as a partner at noted Florida-based plaintiffs firm Morgan & Morgan, is also a former judge in Florida’s 11th Judicial Circuit and one-time star of “Judge Alex,” a syndicated show that featured mediations on which he arbitrated.
Along with Ted Eccles, who helped Ferrer produce the “Judge Alex” broadcast from 2005 until 2014, Ferrer first developed the idea of “Whistleblower.” But when the two men brought the idea to CBS, Susan Zinsky, who previously produced the documentary news magazine “48 Hours,” became the show’s senior executive producer.
In its first hour-long episode, “Whistleblower” featured cases filed by plaintiffs counsel from the Los Angeles office of Waters Kraus & Paul and Philadelphia’s Berger & Montague. The Waters Kraus case targeted the allegedly fraudulent practices of pharmaceutical giant Bristol-Myers Squibb Co., while Berger & Montague’s case involved the alleged practices of pediatric dental chain Kool Smiles. The story arc of each “Whistleblower” segment ends with the money: A more than $500 million settlement in the Bristol-Myers case and a $24 million deal with Kool Smiles. In both cases, the corporate defendants denied fraud claims.
“When you tell the story of whistleblowers, it is that of a hero’s story,” Ferrer told The American Lawyer. “They get immediately trashed by their employers who try and discredit them, their lives are very often destroyed, nobody will hire them, they often lose their homes [and] some times their marriages break up. Most of the time there were other people who worked in these companies who knew what was going on, but didn’t have the guts to come forward.”
Ferrer added that most whistleblowers “know it’s not going to be good for them, but they come forward because of their moral concept and it’s potentially financially rewarding at the end.” His new show will feature only cases that have come to a conclusion, either with a court ruling or a settlement, Ferrer said.
The first episode had 3.07 million viewers in its 8 p.m. EDT time slot, according to a website that tracks television viewership. “['Whistleblower' had] the highest number of viewers in its time slot,” Ferrer said.
No spoiler alerts are necessary here, since Ferrer declined to name which lawyers or cases would be featured on the show within the next few weeks. But he did note that the third week of “Whistleblower” will be must-see television. (A press released issued Tuesday by Chicago-based Behn & Wyetzner states that name partner Michael Behn, a well-known lawyer for whistleblowers, will appear on the July 27 show to detail a case against leading defense contractor Northrop Grumman Corp.)
So are plaintiffs lawyers lining up to get the air time? Not all of them, at least initially.
“There were some plaintiffs lawyers who weren’t sure what we doing,“ Ferrer said. “They were hesitant.” But that changed, he said, when they understood “the caliber of the show we are producing.”
Daniel Miller appeared on the first episode. A partner at Berger & Montague, Miller filed a qui tam suit for two clients in 2011, which alleged that dentists and hygienists at Kool Smiles were directed to meet procedure and revenue quotas irrespective of their patients’ needs. Specifically, 14 operative procedures per day, often treatments given to Medicaid-covered children for not medically indicated conditions, the suit alleged.
When Eccles, the show’s co-executive producer, first approached Miller about having his case featured, the Berger & Montague litigator told him he needed to check with his clients, who then agreed to participate, with one individual appearing on air. Even before that, however, Miller knew that he had a “high-profile” case since it involved alleged misdeeds committed against child patients and led to fraud against the U.S. government. His clients and other whistleblowers making the claims against the Kool Smiles defendants ultimately shared $4 million of the settlement, with the lion’s share of the $24 million award going to Uncle Sam, which had payments to Kool Smiles clinics through Medicaid.
For Miller, participating with the television show’s producers had its glamour moments, including a trip to be interviewed in studios where “Saturday Night Live” skits were previously filmed. Despite the settlement with Kool Smiles, Miller’s litigation battles with the company have not ended with his appearance on “Whistleblower.”
Miller is still engaged in a dispute with the defendants, who are being represented by McDermott Will & Emery, over attorney fees. The defense lawyers have filed an objection to Miller’s request for more than $1 million in fees, arguing that such tabulations are “wildly bloated” and should be no more than $112,500. In his reply, Miller called the defendants’ objections “more bark than bite” and said they had not provided any evidence or district- or circuit-relevant case law to bolster their arguments.
For Ferrer, however, it’s onto the next show and the next case. Ultimately, he hopes the program gets renewed for a second season and inspires more potential whistleblowers.
“Nobody likes companies that rip us off,” Ferrer said. Whistleblowing cases, he added, have a “cleansing effect” beyond just the companies that are targeted. Ferrer said he longs for the day when CEOs who are about to commit fraud think twice about who might just might be wearing a wire in their boardroom.