SEC Provides Strong Support for Whistleblowers

An ambitious whistleblower bounty program. The Dodd-Frank Wall Street Reform and Consumer Protection Act, signed into law in 2010, included an ambitious whistleblower bounty program. In the four years since the law has been in effect, the whistleblower program has proved very successful, due in large part to the support of the Securities and Exchange Commission (SEC).

The SEC has awarded payments totaling over $50 million to whistleblowers; appeared as amicus curiae (friend of the court) in support of whistleblowers seeking protection under Dodd Frank’s anti-retaliation provisions; and pursued companies that retaliate against whistleblowers or attempt to prevent whistleblowers from bringing tips to the SEC. In a recent speech at Northwestern University School of Law, SEC chair Mary Jo White called the SEC “the whistleblower’s advocate,” Forbes reports.

Since it was established in 2011, the SEC’s Office of the Whistleblower has received thousands of tips from whistleblowers from within the United States and from sixty foreign countries, according to Forbes. White said the tips “are of tremendous help to the in stopping ongoing and imminent fraud, and lead to significant enforcement actions on a much faster timetable than we would be able to achieve without the information and assistance from the whistleblower.” The program has “created a powerful incentive for companies to self-report wrongdoing to the SEC,” White said. If companies do not report themselves, the agency may hear about their conduct from someone else. Although only 17 whistleblowers have received monetary awards, the SEC encourages whistleblowers to continue to provide information and its officials have made it clear that the SEC will do its utmost to protect them from retaliation.

The Maximum Award Payable Under the Dodd-frank Act.

The SEC’s first retaliation case, involving Paradigm Capital Management, resulted in a $600,000 award to the whistleblower, which constituted thirty percent of the amount collected from Paradigm and is the maximum award payable under the Dodd-Frank Act. The whistleblower, the fund’s head trader, reported trading activity revealing improper principal transactions and he was immediately demoted, Forbes reports. White said, “the SEC take these whistleblower protections very seriously and companies should too.”

The SEC’s Enforcement Division “has been focused on companies that use agreements or other mechanisms to improperly stifle whistleblowers from coming forward,” White said. She referred to an SEC enforcement action against a company that required internal investigation witnesses to sign confidentiality statements that included language warning that employees who discussed the subject matter of the interviews with outside parties without prior permission could face discipline. White said companies should ensure that employees understand that “it is always permissible to report possible securities law violations to the Commission.”

In its advocacy on behalf of whistleblowers, the SEC has filed amicus curiae briefs in cases pending before the Second and Third Circuit Courts of Appeals. Both cases involve whistleblowers who were terminated as a result of having made an internal report of suspected misconduct. In both these cases, the SEC “advocates” that a whistleblower who reports suspected misconduct only to his employer but not to the SEC is a “whistleblower” entitled to the protection of the Dodd-Frank Anti-Retaliation provision, Forbes reports.

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