REP: L’INTERVISTA IN ITALIANO
L’avvocato dei whistleblower: “Per battere la corruzione bisogna ricompensare chi la denuncia”. E l’Italia non lo fa
He guided me in a world where whistleblowers are protected and obtains monetary rewards for the informations they pass on to authorities. A world where there is a formidable weapon against corruption, but not every country seems eager to use it. But there is more: Kohn explained me how the United States’ laws in recent years have created a transnational program against bribery and fraud. “The majority of my clients now are non-Us: they came from Russia, China, France, Germany, Uk, Africa etc. The modernized whistleblower laws have a transnational impact. They cover publicly traded corporations, so all the major public companies in the world are now covered from Us laws”.
Meeting Kohn is fascinating: he is proud of the successes of the US law on whistleblowers almost like a father who look to a soccer match his children are winning. And it is seen from afar that, besides being a job that guarantees him a good standard of life, he is also a passion.
One of the first things that he said in our meeting was a quote from US senator Chuck Grassley: “Going after waste, fraud and abuse without whistleblowers is about as useful as harvesting acres of corn with a pair of rusty old scissors”. And he goes ahead from there: “There are two types of crime: those that are public – murder, robbery – and those crimes which are effective when nobody knows that they happened. You need an insider, someone who knows. Without that, it doesn’t work. Without a whistleblower laws, you cannot stop bribery. So why don’t you make them legal? Legalize the bribes! What’s the point in keeping that illegal if you cannot go against them?”
The United States have many different laws that admit whistleblowers and rewards them. The False Claim Act for frauds against federal government; the Foreign Corrupt Practices Act against international bribery of a foreign government officials; the Tax Whistleblower Act against fraud or underpayment of taxes. But US also have whistleblowers laws on nuclear safety, oceans pollutions and so on. All of these protects the whistleblower (whose identity is confidential) and entitle him to receive a monetary reward, between 10 and 30 percent of the money that government obtains thank to the evidence. This kind of laws “create a motive for honesty”, explained Kohn.
The money collected is massive. Under the Tax Whistleblower Act, US government just in 2018 paid 300 million dollars in rewards. Considering that the average rewards is 20%, Us Government had collected 6 billion dollars in one year.
Under the False Claims Act, which is fraud against government medical services, between 1986 and 2016 the Us Government collected 37.6 billion dollars in penalties directly from whistleblower activities. And the blowers obtained 6.3 billion in rewards. The average reward is 1.5 million.
In the last 32 years whistleblowers were responsible for 72% of the total funds recovered in fraud cases.
These are not estimates, these are official figures shared from the Us government. “This is actually how much is been collected – explains Kohn – but there are many cases in which the fraudsters went to jail or bankrupt. So the actual scope of those laws is much broader”.
Last data tells also another side of the story: whistleblower cases are surging from outside Us and declining in the Us. It is something that could indicate a change in culture, although we need more data to confirm this claim.
But the growth of foreign nationals rewarded under Us laws confirms that now exists a de-facto transnational anti-corruption program that guarantees anonymity and rewards whistleblowers all over the world. Is this legal? “It is possible because companies that do business in the United States or sell their stocks to americans are obligated to follow our laws. It could be a company traded in Milan, or London or Paris. If a Us person can buy those stock, they’re considered Us companies. Furthermore, for our tax and money laundering laws all major international bank are covered. Because of the scope of these new anti-corruption laws, they are transnational.”
It is a model that is based on the willingness of companies all around the world to sell stocks to americans and Us companies. If you are an international company – not directly subject to Us laws – and you are being fined and risk to be cut out of this market, you prefer to pay. And the whistleblower gets his reward.
Is this not in contrast with other countries laws? “Not at all, this is totally independent”, said Kohn. “Even if a country has made whistleblowing illegal, it does not matter: they can still be covered under the Us law. And a whistleblower can count on the right to be anonymous and confidential: your identity is not exposed in Italy or whatever country the person lives in”.
Kohn himself never worked personally on an Italian case, but 31 Italians have tipped the Us Security Exchange Commission since 2011 on a total of 3305 tips coming from outside Us.
Italy approved in 2017 a whistleblower law (number 179/2017). “I’m not familiar with the Italian law”, said Kohn. I explain to him that he cover the whistleblower from the risk of retaliation, but doesn’t rewards him. “It is better than nothing, but if you want real effectiveness, you have to go to the next level”.
We need, said Kohn, “two components: the first is strong protection on confidentiality; the second is an incentive to come forward”. For a real protection some monetary reward is necessary. “The reason for that is that if the whistleblower only receive compensation after they suffered retaliation that law will not work: nobody wants to be retaliate against. So an effective whistleblower law provide compensation based on the quality of information not on whether or not you suffered retaliation”.
At the end all comes to “the question” that Kohn underline: “If you want to implement an anti-corruption program, how do you not use your most powerful program? That’s the question”.
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