2 - Lawfare Tactics and Legal Advice at Theranos

Summary

Whistleblower protection laws are growing in strength and number across the globe. Whistleblowing workers enjoy stronger legal rights than ever before. But there are dangers. Laws can be undermined by powerful employers with deep pockets intent on exploiting loopholes to suppress public whistleblowing. Lawfare is one such tactic. Whistleblowers can find themselves exposed, and in extreme cases, prosecuted for speaking up. The high-profile story of Theranos’s Erika Cheung illustrates this chapter. As a twenty-three-year-old graduate, Erika blew the whistle on the most famous white-collar crime of recent years. After whistleblowing, she was aggressively pursued by her former employer’s legal counsel: a nationally renowned firm. Along with other whistleblowers, Erika’s testimony would prove pivotal in convicting senior executives. This chapter introduces the new world of whistleblower reprisal, including lawfare tactics ranging from NDAs to SLAPPs and over-reaching trade secrets laws. It points to the vulnerability faced by individual whistleblowers whose rights to protection ‘on paper’ offer scant help in practice. It shows how good lawyers are important, but in the end, they are often not enough.