Tuesday, March 6, 2018

Employing Potential Whistleblowers


Employing Potential Whistleblowers

Tricia Mullins took a risk when she joined Aegerion, a biopharmaceutical company, in September 2012.  Its only product, Juxtapid, would not get FDA approval until December.  It had had no revenue and $60 million a year in expenses.  It stayed afloat only by issuing debt and equity securities, and its ability to do that depended on Juxtapid’s prospects.  At $311,000 a year per patient, the drug could turn the business around.  Mullins’ job was to find customers in New York City.

Unfortunately the market for Juxtapid was extremely limited[1].  If the company was to survive, the drug had to be sold for “off-label” purposes – patient uses not approved by the FDA.  There are legal problems with doing that, though.

By March 2013 Mullins was butting heads with her boss who set sales goals that were impossible to meet within the law.  At a sales meeting in April it was clear her peers were making their goals with off-label sales.  She spoke out against the illegal practice.  One week later she was told her sales performance was disappointing.  In June her boss told her again.  She complained to the CEO in July.  He didn’t reply. 

At the end of July Mullins and two other sales reps filed a false claims suit against Aegerion because many off-label customers were on Medicare.  Mullins was stressed and went out on medical leave.  Aegerion said she abandoned her job.  It stopped paying her and cut off her emails and other communications. 

In April 2014 Mullins started a new job, in patient advocacy not sales.  She got on with life.  Her lawsuit continued for another three plus years.  Then it succeeded in a big way.  Aegerion agreed to pay $35 million to settle criminal charges and false claims allegations.  Mullins and her co-relators were awarded $4.7 million. 

It seemed like a happy ending to a whistleblower’s story.  Mullins observed wrongdoing.  She was offended and spoke up, trying to change corporate misbehavior.  She suffered retaliation, but stood up again.  As Stephen M. Kohn’s The New Whistleblower’s Handbook promised, she emerged victorious.

This telling simplifies some elements of her story.  She knew what she was getting into when she joined Aegerion.  The company needed to push edges of the envelope, or it was dead.  She was in the thick of things as sales rep for a new product that had to move.  And she was no naïf.  She’d worked for 6 biotech companies before Aegerion.  Still, her awareness did nothing to reduce the company’s culpability.  The story turned out as it was supposed to.

When the Department of Justice announced its settlement with Aegerion in September 2017, it named Mullins as one of the whistleblowers.  Her 23-year career to that point included jobs at ten companies.  Loyalty was not an obvious strength, but public fame at whistleblowing marked her as a potentially dangerous employee.

To protect her position at her new employer, Horizon Pharma, her attorney sent the company a letter.  He enclosed DoJ’s news release and reminded them they would be sued if they retaliated against her in violation of the False Claims Act.  In December the company fired her supposedly for violating confidentiality rules.  As promised, her attorney filed suit against Horizon Pharma.

Whistleblowers are often morally ambiguous characters.  We often suspect we are joining up with scumbags before we dream of whistleblowing.  We squeeze out enough personal benefit even if they are scum.  In one big-time case, Sherron Watkins surely was aware of Enron’s unethical culture[2] before she discovered its accounting fraud.  She was paid well, but Enron still did wrong.  Whistleblowers, big-time and small, need jobs.  We put up with imperfection.

Like Mullins, I had worked at enough companies to establish I was not an unreservedly dedicated employee.  Worse, in the view of HomeFirst’s CEO, I had spent most of my time with for-profit companies.  I lacked sufficient passion for HomeFirst’s mission.  We both knew this before my whistleblowing project.

Like Aegerion, HomeFirst operated at the ethical edge almost by necessity.  It had a history of compliance problems.  The $1.2 million HUD overbilling was one.  There was also its 2007 licensing problem[3], well before issues I disclosed.  HomeFirst also had a history of financial challenges beginning before I joined in 2007.   I became its CFO because I thought I could deal with them.  Conditions improved but then worsened again under CEO Jenny Niklaus.  I was aware of all this and, like Mullins, I stayed with the company.  Maybe I thought I could help fix things.  Maybe I decided the job paid well enough and I would retire before anything disastrous happened.  Probably a little like Mullins.

We often bring unhappy conclusions on ourselves.  We could avoid them by leaving earlier, but we stay for reasons often selfish.  And our employers know well in advance of our whistleblowing what could happen.  Signs may be there before we are hired, as they were with Mullins.  They may even plan for it.

It looks like Horizon Pharma didn’t recognize the signs when they hired Mullins.  Her lawsuit will test whether their suspicious claim will win.  HomeFirst’s did against me.



[1] Juxtapid was approved to treat homozygous familial hypercholestrolemis, a rare lipid disorder inherited from both parents that results in a limited or complete inability to remove low-density lipoprotein from the blood.  Aegerion’s price for the drug, which was taken once a day, was $311,000/year.
[3] EHC LifeBuilders changed its name to HomeFirst Services in 2014.

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