Dodd-Frank Whistleblowers

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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Whistleblower protection has changed dramatically in the past 15 years, says Stephen M. Kohn, chair of the National Whistleblower Center. Writing in the international publication “Ethical Boardroom,” Kohn spells out the changes and what they mean to those on governing boards and in the C-suite.

This is all radically different than the whistleblowing depicted in popular culture. It has nothing to do with employee grievances or the stealing of national security secrets. Done correctly, an employer never learns the identity of the whistleblower and thus, traditional employment relations cases become relics of a time when whistleblowers lacked safe, confidential and effective reporting mechanisms.

These changes need to be embraced, not opposed. The issue is no longer the whistleblower, but whether a company will tolerate criminal activity in order to profit. Turning a blind eye to corruption can have disastrous consequences…Trying to silence whistleblowers is the biggest mistake any corporate executive can make.
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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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Every whistleblower and every attorney who represents them should be aware of the U.S. Court of Appeals for the Fifth Circuit’s November 12, 2014 ruling in Halliburton v. Administrative Review Board.

Decided under the Sarbanes-Oxley Act’s anti-retaliation provision, the case was simple. Halliburton disclosed the name of one of its employees who had filed an SEC fraud report to other employees inside the company. Once identified, that whistleblower was subjected to foreseeable “undesirable consequences,” such as “ostracism” from fellow employees. The issue presented to the court was whether or not the disclosure of the whistleblower’s identify was an unfair labor practice under the Sarbanes-Oxley Act. The Court correctly found that it was.

In a unanimous decision the Fifth Circuit’s panel held as follows:
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