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What’s-In-a-Name-Whistleblowers-300x300The U.S. Commodity Futures Trading Commission announced that it has awarded more than $45 million to whistleblowers. This includes a recent $30 million award to a whistleblower, the largest single award in the program. A second whistleblower award of $70,000 is the first to be awarded to a resident of a foreign country. Both individuals provided critical information that led to successful outcomes.

The program encourages individuals to report misconduct and violations of the Commodities Exchange Act (CEA.) Whistleblowers are offered protection against retaliation for reporting, and these awards are given for successful recovery.

According to the CFTC’s website, the Whistleblower Program “was created by section 748 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act).  The CFTC pays monetary awards to eligible whistleblowers that voluntarily provide the CFTC with original information on violations of the CEA that leads the CFTC to bring a successful enforcement action resulting in monetary sanctions exceeding $1,000,000.”

The Securities and Exchange Commission (the “SEC”) announced that it was awarding a whistleblower more than $2.2 million on April 5, 2018 using the “safe harbor” provision of the Securities Exchange Act of 1943.

The whistleblower, a former company insider, first reported the information to another federal agency and later provided the same information to the SEC. The information helped the SEC open an investigation that led to an enforcement action.

While not the highest amount awarded to a whistleblower by the SEC, the award is significant as it is the first award paid under the “safe harbor” of The Securities Exchange Act of 1934 Rule 21F-4(b)(7). The rule treats whistleblower information as though it had been submitted to the SEC at the same time that it was submitted to another federal agency as long as that same whistleblower information was submitted to the SEC within 120 days of first filing.

The Securities and Exchange Commission (the “SEC”) announced on March 19, 2018 its largest whistleblower award: a $50 million bounty split between two whistleblowers and a $33 million award to a third whistleblower.

Prior to the combined $83 million award, the SEC’s highest whistleblower award was $30 million awarded in 2014.

In 2010, Congress added Section 21F to the Securities Exchange Act of 1934 (the “Exchange Act”). Part of 21F authorized the SEC to pay monetary awards to individuals who voluntarily provided the SEC with original information about a securities law violation that lead to the SEC sanctioning the wrongdoer in excess of $1 million.

An overseas tipster recently helped the SEC take down a large and long-running securities fraud at the whistleblowers former company.

As per policy, the SEC would not identify the individual whistleblower or the specific securities violation they helped to uncover, but they did note the tipster worked for the company where the alleged securities violations took place and they offered to assist the SEC throughout its entire investigation. The SEC also said that the tipster was not a U.S. citizen and worked for the company in an overseas office.

Jane Norberg, chief of the SEC’s Office  spoke about the case saying “Company insiders often have valuable information that can help the SEC halt an ongoing securities law violation and better protect investors,” She also spoke about the SEC whistleblower program in general “The breadth of the SEC’s whistleblower program is demonstrated by this case, where the whistleblower, a foreign national working outside of the United States, affirmatively stepped forward to shine a light on the wrongdoing.”

On November 30, 2017, the Securities and Exchange Commission announced two whistleblower awards in excess of $8 million.  The bounties were awarded to 2 individual whistleblowers whose information was instrumental in the SEC investigations, and who’s continuing assistance and cooperation substantially assisted the SEC in successfully bringing the underlying enforcement actions.

SEC enforcement actions sourcing from whistleblower tips have resulted in more than $1 billion in financial remedies ordered against securities and investment firms since 2012.

One of the whistleblowers in the recent awards alerted the SEC enforcement staff of misconduct that would become the central focus of the staff’s investigation and the centerpiece of the SEC’s subsequent enforcement action.  The second whistleblower at the same firm provided additional significant information and ongoing cooperation to the staff during the investigation resulting in a substantial savings of time and agency resources.  

The Whistleblower business can be very profitable for tipsters, a landmark whistleblower award of nearly $2.5 million was awarded today by the Securities and Exchange Commission. The recipient of this award was the employee of a domestic government agency. Information provided by this whistleblower was instrumental in launching a SEC investigation. The anonymous whistleblower continued to offer assistance and eventually helped expose wide ranging misconduct in an unnamed company.

Jane Norberg, the Chief of the SEC’s Office of the Whistleblower praised whistleblowers and the continued success of the award program.

”Whistleblowers can provide a wealth of information and ongoing assistance that helps our agency bring enforcement actions quicker and more efficiently,” She also noted the speed allowed by the assistance of whistleblowers.’ “This whistleblower not only helped us open the case, but also provided timely ongoing assistance along with critical documents and testimony that accelerated the pace of our enforcement action.”

A key component of the Dodd-Frank Act is headed to the Supreme Court for review. The court will decide if internal whistleblowers who have not yet reported potential violations to the SEC are protected under the anti-retaliation statutes of Dodd-Frank.

The Supreme Court review is necessary to resolve a split in the lower appellate courts stemming from a case brought by a former Digital Realty Trust Inc executive. In the case, Paul Somers a former employee of Digital Realty seeks to sue for alleged retaliation. Digital Realty had protested a decision by the Ninth Circuit that found that internal whistleblowers were protected under the Dodd-Frank Act’s anti-retaliation statutes, even if they had not yet reported potential violations to the SEC.

Somers’s lawyer, Daniel L. Geyser of Stris and Maher was not surprised by the Supreme Courts willingness to hear the case, although he strongly believed that the Ninth circuits interpretation of the law was in line with the scope of Dodd-Frank as written by Congress.

Even with political clouds of uncertainty from the Trump administration, the head of U.S Securities and Exchange Commission is moving the agency full speed ahead, all the while chastising companies that retaliate or discourage their employees from blowing the whistle on possible securities violations.

Last month, Jane Norberg; the current chief of the SEC’s Office of the Whistleblower spoke on a panel at the Practising Law Institute on Corporate Whistleblowing. During the panel, she told attendees that they could expect the same level of enforcement and investigation as in years past.

Open for business

The CFTC Whistleblower program today announced the launch of a news portal, event schedule, and FAQ for its whistleblower program on its website

This new portal will contain industry news, CFTC Events and a FAQ covering the Whistleblower program and information on submitting a whistleblower tip and claiming awards based on accurate tips. The CFTC hopes this newly created section of its site will provide higher quality tips that lead to larger sanctions and more awards being paid out to tipsters.

Some of the tips for Whistleblowers suggested by the CFTC

The SEC recently declined to pay a whistleblower award to a claimant that sought the SEC’s review of its stance on payouts stemming from information provided prior to the Dodd-Frank Act’s enactment in 2010.

In an SEC Order, the claimant provided whistleblower information to the SEC in 2007, three years before the Dodd-Frank Act.  According to Rule 21F-4(b)(1)(iv), all whistleblower payouts must be based on information provided to the SEC after the enactment of the law on July 21, 2010.

The Commission relied upon a 2015 Second Circuit decision that sided with the SEC in its refusal to award a whistleblower bounty for information provided prior to 2010.  The Second Circuit held that the whistleblower was ineligible for an award because the tip was provided prior to the Dodd-Frank Act

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