MIKE BEHN Helping WhistleblowersDo the Right Thing

by James Stevens

Mike Behn’s track record of success inwhistleblower litigation speaks volumes: Hehas helped federal and state governmentsrecover hundreds of millions of dollars.

Behn’s firm, Behn & Wyetzner, Chartered,helps whistleblowers seek justice for fraudagainst the government under the False ClaimsAct of 1986. The False Claims Act originated as“Lincoln’s Law” during the Civil War, as a meansto curb fraud in government contracts. Today,the False Claims Act and its state counterpartshave paved the way to recover billions ofdollars that might otherwise be lost to fraudand dishonesty in government contracts.

The suits allow private individuals to expose fraud against the government. Thesewhistleblowers—who do the right thing andraise a hand when they see something thatisn’t right—are called “relators,” and get apercentage of the recovery for their efforts. Butrelators face an incredibly difficult road aheadwhen they first notice government fraud—andBehn is there with them every step of the way.

A Memorable Case, a Lifelong Friend One of Behn’s most memorable clients began

his long journey as a relator when he noticed aproblem while working for Northrop Grumman.Jim Holzrichter was an auditor for the companyon three federal defense projects. As part of the programs, his company was able to billthe government as the project advanced.Holzrichter noticed that the amount NorthropGrumman billed the federal government seemedexcessive and just didn’t add up. It was timeto take action.

The Northrop case shows the difficulty of aclient’s situation when they decide to blow thewhistle, Behn says. Though Holzrichter wasdoing the right thing and raising a flag to aserious problem internally, his supervisorsignored him and hushed him away.

Holzrichter cooperated with the federalgovernment for a year and a half. Soon,however, the harsh realities set in and he waspressured out of his job and into medicalleave. He lost nearly everything that he hadearned over the years as a professional. Hisfamily had to sell their house, and he had avery difficult time finding new employment.

As Holzrichter’s new reality set in, he hiredthe law firm where Behn would begin as an

associate. During the representation, Behnremained by his side: “I went from a Fortune 500company to living in a homeless shelter, butMike was always there to take my phone callsand was very understanding and supportive.”

Holzrichter’s situation is not unusual forwhistleblowers; they are shunned from theirindustries and often labeled a rat during theproceedings. It can be nearly impossible to finda replacement job if they work in a specializedfield. Holzrichter reflected, “I received over 400rejection letters, ended up sweeping parking lotsfor $20 a week and delivering newspapers tomake ends meet, but Mike never dodged a call.”

It took nearly 16 years for the NorthropGrumman case to resolve to settlement,sending a resounding message to federalcontractors as well as the Chicago legalcommunity that defrauding the government isbad business. Holzrichter’s settlement in thecase was $134 million, $100 million more thanthe next highest settlement in Chicago that year.

However, Behn and Holzrichter’s work didnot end with the settlement. Today, Holzrichterand another of Behn’s former clients, Dr. JanetChandler, share their insight gained fromsurviving their whistleblower cases and lead anationwide mentoring project with TaxpayersAgainst Fraud to help other relators. Attorneyswho handle whistleblower actions often refer

new relators to TAF for the needed emotionalsupport and someone to say “you can getthrough this” and survive “the isolation thatcomes before and after,” according toHolzrichter. Behn often provides legalperspective and helps whistleblowers in thesupport group find the right representation fortheir claims.

The Nature of a Qui Tam CaseWhistleblower cases, also known as qui tam

actions, require an extremely sharp legal andorganizational ability, two characteristics whichhis clients and colleagues say are synonymouswith Mike Behn. According to Holzrichter,Behn was able to master the complexity in theNorthrop case easily: “He’s got a great abilityto grasp disconnected information and pull ittogether to make sense.”

As relators’ counsel, Behn (pronounced like“Ben”) orchestrates complex litigation betweenassistant United States attorneys, state attorneysgeneral, counsel for federal agencies, and theclients themselves. One recent case that Behnhandled involving a pharmacist who workedfor the CVS company involved 29 states.

Behn manages massive efforts like the CVScase using a team structure that helps him keepthe complex cast of characters and deadlinesin order. As a self-described “chief operatingofficer,” Behn seems to enjoy this managementadventure. He loves the challenge of playing toeveryone’s strengths and thrives on the energyof a great team, admitting that “working withthe right people is the true joy of lawyering.”

The “right people” couldn’t agree more.Assistant United States Attorney LindaWawzenski of the Northern District of Illinois hasworked with Behn on multiple cases and speaksextremely highly of his ability as lead co-counsel: “I’ve been working with Mike Behn onqui tam cases for probably ten years now. Inthat time, he’s been a true partner with theUnited States in the investigation and litigationof whistleblower cases.” Wawzenski adds thatBehn’s prior experience outside of privatepractice make him the perfect ally in thesedifficult cases: “Perhaps because he himselfpreviously spent time in a U.S. attorney’soffice, he has an understanding of thegovernment process and exactly how thingswork in the federal sector. He brings us well-

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prepared cases with backup information andresearch, which clearly makes our job easier.”

The CVS case is an excellent example of howBehn’s management achieves great results.Behn was counsel for a client he describes as“an old-fashioned corner pharmacist whonoticed that the CVS Corporation was switchinghow it filled Zantac prescriptions. Zantac,commonly known as ranitidine, comes in tabletand capsule forms. Medicaid realized thatZantac tablets were frequently prescribed andit set a standard price that it would reimbursefor Zantac tablets. However, Medicaid wassilent on reimbursements for Zantac capsules.

The whistleblower noticed that CVS changedits policy and would only fill Zantac in capsules,not tablets. He believed this was wrong andsuspected that the switching was an attempt toincrease corporate profits and avoid Medicaid’sreimbursement ceiling. The case soon grew tobe a massive example of multi-state litigation,involving the federal government, 29 statesand their attorneys general. Behn managedthe flow of information and preparation for trial,ensuring that each federal and state entity hadthe right information to make the case.

The pharmacist’s hunch and Behn’smanagement paid off: CVS eventually settledthe case for $36.7 million in March.

Behn’s most recent settlement wasannounced in June when Walgreens agreed topay $35 million overcharges that the companyunlawfully defrauded Medicaid by switchingprescriptions for ranitidine, and fluoxetine, thegeneric form of Prozac. The settlement affectsthe U.S. government, Puerto Rico, and 42state governments.

The Justice Department is very selective inbringing qui tam actions; it only brings selectwhistleblower claims that are valid and appearlikely to succeed, which means that preparationand advance work is key to a case’s survival.Holzrichter’s advice for future whistleblowersis simple: “there are a lot of attorneys that dodifferent things, but the complexity of the lawmeans that you need someone who knowswhat they’re doing… Mike’s working relationshipwith the federal prosecutor and his reputationas being one the premier qui tam attorneys inthe country means that when he brings a case,[the prosecutors] look at it.”

For his part, Behn agrees. He says thatexperience counts most when bringing a quitam case, and that most attorneys “should nottry this at home.” �

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This article originally appeared in Leading Lawyers Magazine—Consumer Edition for 2008 and has been reprinted with permission. © 2018 Law Bulletin Media