In this episode of S&C’s Critical Insights, Annie Ostrager, Co-Head of S&C’s Employment Law Group, Litigation Partner Kamil Shields and Litigation Associate Sabrina Solow, underscore key takeaways from the whistleblowing series and discuss anticipated developments.

They discuss how companies may respond to the different federal government whistleblower programs, as well as the shift in priorities under the current administration, including investigating federal contractors.

A preview of the conversation can be found in the Q+A below.

Sabrina: What are trends you’re anticipating or areas you’re watching in the whistleblowing space?

Annie: One significant area of focus, where we are already seeing activity, including based on whistleblower tips, is investigations of federal contractors. Earlier this year, the administration announced its Civil Rights Fraud Initiative, the purpose of which is to “investigate and, as appropriate, pursue claims against any recipient of federal funds that knowingly violates federal civil rights laws.” The Initiative is intended to enforce policies announced in various recent Executive Orders aimed at certain forms of discrimination.

Kamil: We expect that universities could be a particular area of focus as a basis of a False Claims Act action and that action could be pursued on the ground that the university is violating the DEI policies that you just discussed in these Executive Orders. While we have not yet seen… a False Claims Act enforcement action brought against a university by the Civil Rights Fraud Initiative, according to news reports, investigations by the DOJ have started based on this theory.

In this episode of S&C’s Critical Insights, Kamil Shields, a partner in S&C’s Litigation Group, Mehdi Ansari, Co-Head of the Artificial Intelligence Practice, and Litigation Associate Sabrina Solow discuss whistleblowing developments, including the proposed AI Whistleblower Protection Act.

They also compare how the current and prior administrations have approached AI through executive orders, and examine recent parallel criminal and civil cases brought by the Department of Justice and Securities and Exchange Commission for alleged “AI-washing,” which refers to a company’s false or misleading statements about its use of AI and the capabilities of its AI program.

A preview of the conversation can be found in the Q+A below.

Sabrina: Mehdi, could you describe the recent legislation to protect AI whistleblowers and how it came about?

Mehdi: Introduction of this bill comes on the heels of commentary from Senator Grassley and others expressing concern that employment and non-disclosure agreements may be stifling employees of AI companies from making protected disclosures to government regulators. … It is worth noting that current whistleblower protections under Sarbanes-Oxley and Dodd-Frank are generally tied to reporting unlawful activity. This Act would be broader, covering disclosures about risks that may not yet be illegal.

Sabrina: Kamil, what would Senator Grassley’s proposed AI Whistleblower Act do?

Kamil: Importantly, unlike other regimes discussed in prior episodes, the legislation does not purport to offer the opportunity for a large monetary reward for blowing the whistle. It does, however, contain a section called “Anti-Retaliation Protection for AI Whistleblowers.” That section protects a whistleblower who provided information regarding an AI security vulnerability or conduct the whistleblower reasonably believes to be an AI security vulnerability or AI violation from a range of retaliatory conduct, including demotion, suspension, threats, harassment, or termination.

In this episode of S&C’s Critical Insights, Annie Ostrager, Co-Head of S&C’s Employment Law Group, Nic Bourtin, Head of the Criminal Defense and Investigations Group, and Litigation Associate Sabrina Solow discuss whistleblowing developments, including the DOJ Criminal Division’s Corporate Pilot Program and its recent changes under the new administration.