Washington, D.C. November 28, 2017. Rejecting arguments by Senator Charles Grassley, the Securities and Exchange Commission (“SEC”) and numerous representatives from the whistleblower community, during today’s oral argument in Digital Realty Trust v. Somers (No. 16-1276), the U.S. Supreme Court Justices expressed support for stripping internal whistleblowers of protection under the Dodd-Frank Act (“DFA”).
Thousands of Whistleblowers At-Risk of Losing Protection
WASHINGTON, DC – DISTRICT OF COLUMBIA, UNITED STATES, November 28, 2017 — The United States Supreme Court will hear oral argument today in a major precedent setting whistleblower case, Digital Realty Trust v. Somers. the first whistleblower case under the Dodd-Frank Act (DFA) to reach the Supreme Court.
Washington, D.C., November 27, 2017. On Tuesday, Nov. 28th the United States Supreme Court will hear oral argument in Digital Realty Trust v. Somers, the first whistleblower case under the Dodd-Frank Act (DFA) to reach the Supreme Court. Continue Reading Thousands of Whistleblowers at Risk
On Tuesday, October 17, 2017, Senator Charles Grassley and the Securities and Exchange Commission joined the National Whistleblower Center in supporting the whistleblower in Digital Realty Trust v. Somers (No. 16-1276) by filing amicus briefs with the U.S. Supreme Court. Continue Reading Senator Grassley and SEC Join NWC in Filing Amicus Briefs in Critical Supreme Court Case
This term the U.S. Supreme Court will decide Digital Realty Trust v. Somers (Digital), one of the most important whistleblower cases to come before the Court in 20-years. The Chamber of Commerce and its Wall Street allies want to strip all employees who report securities frauds internally to their compliance departments or managers from protection under the Dodd-Frank Act’s (DFA) whistleblower law. Continue Reading Thousands of Whistleblower Cases in Jeopardy
The Chamber of Commerce has commenced a well-financed and aggressive lobbying campaign to undermine America’s most effective whistleblower law, the False Claims Act. To justify its anti-whistleblower campaign the Chamber published a report entitled, “Fixing the False Claims Act: the Case For Compliance-Focused Reforms.” The purpose of this blog series is to combat the Chamber’s misinformation, and explain why the False Claims Act must be protected.
Fact Number 11:
Unlike the impression given in the Chamber’s report, the FCA is not a negligence or strict liability law. As explained by the Department of Justice in its FCA Primer: “A person does not violate the False Claims Act by submitting a false claim to the government.” Continue Reading The FCA Strongly Encourages Businesses to Maintain Effective Internal Compliance Programs
Holy Wal-Mart Whitewash, Batman! Without a doubt, the unfolding Wal-Mart bribery scandal in Mexico (coming soon to a business school case study near you) is ripe for “lessons learned” for governance experts everywhere. But it is also illuminating to drill down a little further and examine the implications from a whistleblower point of view.
It’s true that only some of the facts are known so far, revealed in an exhaustive New York Times 8,000+ word investigative report. But those reported facts are not boding well for the giant retailer. This we know: 1) in 2005, a whistleblower with intimate knowledge of a Mexican bribery scheme (to secure permits and rapidly expand the market share) sent an email raising the flag to the international general counsel 2) although that international GC strongly recommended an expanded independent investigation, she was overruled (and ultimately resigned) 3) the top GC, CEO and “a small group of executives” decided to refer the investigation to the very Mexican GC who authorized the bribes in the first place, who then 5) promptly closed the matter with a finding of “nothing to see here” 6) Wal-Mart decided to “self-report” only after learning of the soon-to-be newspaper expose and 7) none of the execs or legal counsel involved in the handling of the matter have been fired or disciplined, and a few have even been promoted. Whew!
As this tale of corporate whistleblower woe publicly unfolds, what have we learned? Early observations from the whistleblower standpoint:
(The First Seven Months of the SEC Dodd Frank Whistleblower Program)
So far, the sky has not fallen. That’s not to say there isn’t some curious weather activity.
Now that the SEC has logged at least seven full months of the Dodd Frank whistleblower program, it’s worth taking a moment for a brief status check on what we have learned so far. To do that we might consider two available clues: a public comment from an SEC official and the fate of a GE whistleblower who is suing the company for retaliation.
First, the SEC. Recently Sean McKessy, head of the new SEC whistleblower program, commented about the 2000 tips returned to date: "I’d be hard pressed to think of one where it was a true insider tip that was not reported to anyone else." That little nugget pretty much validates the results of the National Whistleblowers Center qui tam study that found nearly 90% of qui tam plaintiffs attempted to report their concerns either to their supervisors or compliance departments, before going to the government. This mirrors the anecdotal stories from advocates who say that by the time most whistleblowers come forward, they have already tried to report their concerns internally, not once, but three, four, nine times, and have been kicked in the shins (or far worse) for their troubles.
Originally Published by FCPA Compliance and Ethics Blog
Author: Thomas Fox
The holiday season is past and many of us have returned to work. However, if you are a Chief Compliance Officer (CCO) there is a gift that you may wish to give yourself, it is “The Whistleblower’s Handbook – A Step-by-Step Guide to Doing What’s Right and Protecting Yourself” authored by Stephen Martin Kohn, Executive Director of the National Whistleblowers Center. I do not suggest that CCO’s purchase this volume for their own protection, although the former Chief Executive Officer (CEO) of Olympus might have been able to use it before he was fired by the Olympus Board last October. No, I suggest that CCOs purchase this because many others in your company may well do so and it is the best single volume collection of all laws, rights and obligations related to whistle-blowing that I have come across.
I thought about Kohn’s book when I came across a couple of whistleblower related items last month. The first one was an article in the December 28, 2011 edition of the Wall Street Journal (WSJ), entitled “Internal BNY Mellon Documents Show Panic” by Jean Eaglesham and Michael Siconolfi. In the article they report on some of the emails and other documentary evidence that whistleblower Grant Wilson was able to obtain during the two year period that he was operating “as a government informant” while employed by Bank of New York Mellon (BNY). The WSJ obtained this evidence through an open-records request. Wilson was part of a group which brought a series of whistleblower lawsuits against BNY, which have led to several states, and the Manhattan US attorney, filing civil suits against BNY. Eaglesham and Siconolfi also reported that “the bank’s [BNY] foreign-exchange traders grew concerned about a leaker” and in an earlier WSJ article, entitled “Secret Informant Surfaces in BNY Currency Probe”, reporter Carrick Mollenkamp stated “BNY Mellon sought to discover the insider’s identity and to fight the lawsuits.”