Dodd-Frank Whistleblowers

Securities and Exchange Commission

In announcing its first two whistleblower awards of the year, the Securities and Exchange Commission notes:

As set forth in the Dodd-Frank Act, the SEC protects the confidentiality of whistleblowers and does not disclose information that could reveal a whistleblower’s identity.

In one case, a whistleblower alerted the agency to a fraudulent scheme and received a share of the recovery — $277,000.  In another case, an investor alerted the SEC. That person was awarded $45,000.

The SEC also notes: All payments are made out of an investor protection fund established by Congress that is financed entirely through monetary sanctions paid to the SEC by securities law violation.

We await action on proposed changes to the SEC whistleblower law that could hurt whistleblowers.

Nigeria

Worldwide, whistleblowers have much less protection than they do in the U.S. Nigeria, for example, did poorly on this week’s Corruption Perception survey, scoring a 26 out of 100. A new video from an ongoing anti-corruption effort tells the stories of several Nigerian whistleblowers.


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It may be the end of the year for the rest of the world, but the fiscal year ended in October. As we wait for the Department of Justice to crunch its numbers for the year end report on False Claims Act collections, we look back on this year’s reports from other federal programs.

The Inspector General (IG) of the Intelligence Community, Michael K. Atkinson, called whistleblowers the agency’s  “first responders” in his semi-annual report to Congress. In April, the office issued a report entitled “Whistleblowing Works.”

The Commodity Futures Trading Commission awarded more than $75 million in FY 2019 to five whistleblowers  “who voluntarily provided original information or analyses that led to successful enforcement actions.” This total includes the program’s largest-ever award of approximately $30 million.

SEC

The Securities and Exchange Commission reported that it awarded approximately $60 million in awards to eight people  “whose information and cooperation assisted the Commission in bringing successful enforcement actions.” This included a $37 million award to a whistleblower who supplied information that led to a settlement against JPMorgan Chase & Co. over claims the company was not transparent with investors about conflicts of interest.

The most recent report from the IRS came out in February and reported that whistleblowers helped the agency collect more than $1.4 billion in criminal fines, and civil forfeitures in fiscal year 2018. Since 2007, the program has made more than $800 million in whistleblower awards based on the collection of $5 billion.


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The Commodity Futures Trading Commission (CFTC) financial whistleblower program has been busy, most lately announcing a $2 million award to “two model whistleblowers who provided the agency with significant information that prompted the CFTC to open an investigation….The multiple interviews and numerous documents the whistleblowers provided were highly informative and formed the basis of the CFTC’s investigation.”

its largest whistleblower awardIn June, the agency announced a $2.5 million award, which followed a $1.5 million reward announced in May. The agency reports awarding more than $87 million to whistleblowers between 2014 and 2018.

The agency is committed to the program, according to a quote from director James McDonald in a press release announcing the May award.

Today’s award stands as one in a growing line of whistleblower awards that show the Commission’s continued commitment to the program. Whistleblowers have become an integral part of our enforcement efforts, and I expect that trend to continue going forward.
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Whistleblower programs are “an important check on a firm’s compliance,” according to a survey of nearly 200 “financial services executives.”

The survey, conducted annually by the consultants at the firm Duff & Phelps, is designed to provide “a view into how firms are grappling with the constant of regulatory compliance against a backdrop of continual change.” In addition to whistleblower efforts, the study looks at anti-money laundering programs and new technology coming online for compliance and enforcement programs.

A summary reports that nearly three-quarters of respondents confirm that they have whistleblowing programs in place and 86 percent of them “at least somewhat agreeing that such programs should be mandatory.” Between one-quarter and one-third of firms feel the programs are firms are either “very” or “completely” effective.

At the same time, some are less confident in individual elements of the programs. More than one-quarter of the respondents describe their firms’ ability to evaluate the complaint and to “implement an appropriate response” to a whistleblower to be “not-at-all” effective or “somewhat” effective.  
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Two SEC whistleblowers have been awarded a total of $50 million for exposing conflict-of-interest problems with investment advisors at JPMorgan Chase Bank

The Securities and Exchange Commission announced the awards but did not offer any details of the case. However, lawyers for one whistleblower revealed it involved a 2015 $267 million settlement with the bank.

JPMorgan Chase Bank advisors invested clients’ money in JPMorgan hedge funds and mutual funds without properly disclosing the conflicts of interest, According to the 2015 settlement, some of the funds produced less revenue than other investments.

In an announcement of the award, Jane Norberg, head of SEC’s whistleblower program, wrote that insiders can “be the source of ‘smoking gun’ evidence and indispensable assistance that strengthens the agency’s ability to protect investors and the capital markets.”

One whistleblower won $13 million and the other received $37  million. The SEC announcement noted that the latter award was the third-highest award to date after the $50 million March 2018 award and a September 2018  $39 million award.


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SEC Whistleblower RewardsOn Wednesday, December 12, 2018, National Whistleblower Center (NWC) Executive Director Stephen M. Kohn made a formal presentation to representatives from the U.S. Securities and Exchange Commission (“SEC”) opposing the proposed SEC rule  limiting awards in major fraud cases.  Kohn was joined by NWC Policy Counsel Maya Efrati and NWC Legal Fellow Sarah Khan. The packed room included SEC leadership from the Office of General Counsel, the SEC Whistleblower Office and the Office of the Chairman of the Commission. The meeting lasted for over one hour.
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International-Map-of-SEC-Crimes-Reported-foreign-corrupt-practice-act
International tips are crucial to the SEC’s law enforcement capabilities. From 2011 to 2017, the SEC received a total of 2,655 whistleblowers from 113 countries. This map shows the countries as well as the frequency of those tips.

Washington, D.C. August 30, 2018. Today, the National Whistleblower Center (“NWC”) released a report analyzing data from Foreign Corrupt Practice Act (“FCPA”) cases since the law was passed in 1977, including several cases decided in 2018.

The Foreign Corrupt Practices Act is one of the most important whistleblower laws, especially for foreign nationals and for combatting corruption and bribery occurring on foreign soil. The FCPA prohibits companies issuing stock in the U.S. – and their subsidiaries – from bribing foreign officials to win contracts and other business.
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sec-building-headquartersThe rewards for SEC whistleblower can be potentially limited for a successful qui tam lawsuit. The SEC is proposing controversial amendments to its whistleblower program. Under current directives, a whistleblower who provides information that leads to an SEC enforcement action receives 10%-30% of the recovery by the agency. This monetary provision incentivizes potential whistleblowers to disclose rather than remain silent.

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people-walking-inside-buildingToday, we expect Wall Street to be as much a part of the community as Main Street. For corporations with social responsibility commitments and investor groups with social responsibility mandates, whistleblowers are a crucial force for compliance. Whistleblowers ensure that businesses play by the rules, including those that they’ve set for themselves, as part of their social responsibility commitments. As the number of whistleblower claims rise, both in quality and scope, the potential impact of these cases on socially responsible investing, and on companies committed to and impacted by such frameworks, needs to be placed in the spotlight.

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Donna C. Boehme of Compliance Strategists LLC has been named a 2018 Trust Across America Lifetime Achievement Award honoree for her outstanding achievements in the field of corporate ethics and compliance. Ms. Boehme is the first member from the compliance profession to receive this prestigious award.

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