Dodd-Frank whistleblower program

According to the latest annual report from the SEC’s Office of the Whistleblower, the number of whistleblower reports and the total value of whistleblower awards continued at elevated levels during fiscal 2019 (which ended September 30, 2019). Though the reports and awards remained high during the fiscal year, both were down relative to the prior fiscal year. And while the aggregate award values and even several individual awards during the fiscal year are impressive, the small number of awards relative to the vast numbers of whistleblower reports is noteworthy and striking, as is discussed further below. The Office of the Whistleblower’s November 15, 2019 report can be found here.
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On March 26, 2019, the SEC announced that it was awarding two whistleblowers a total of $50 million for providing the agency with information that led to a successful enforcement action. The two awards consisted of an award to one individual of $13 million and an award to a second individual of $37million. The $37 million award is the third largest award in the history of the SEC’s whistleblower program. The SEC’s March 26, 2019 press release announcing the awards can be found here. The SEC’s whistleblower award order can be found here.
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The SEC Whistleblower Program had a “record-breaking year” during the 2018 fiscal year that ended on September 30, 2018, according the latest annual report from the agency’s Office of the Whistleblower. During the fiscal year, the agency not only made total awards exceeding the aggregate amount awarded in the entire prior history of the program, but it also made the largest separate awards in the program’s existence. The number of whistleblower reports during the fiscal year also increased over 20 percent, the largest annual increase in the number of reports in the program’s history. The SEC’s Office of the Whistleblower’s 2018 Annual Report can be found here.
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Amidst the flurry of Supreme Court decisions, new lawsuits, and other activity in the last few days, I have not yet had the chance to comment on a particularly important development earlier this week. That is, on March 19, 2018, the SEC announced the two largest whistleblower bounty awards in the history of its whistleblower bounty program. The value of the two awards to three whistleblowers, whose reports led to a $415 settlement with Merrill Lynch, totaled roughly $83 million. These awards are significant, and not just because of their size, as discussed below. The SEC’s March 19, 2018 press release about the awards can be found here, and the SEC’s heavily redacted March 19, 2018 Order Determining Whistleblower Award Claims can be found here.
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The SEC’s whistleblower program is now entering its seventh year. The SEC’s Office of the Whistleblower’s November 15, 2017 annual report to Congress underscores that the agency’s whistleblower program continues to grow and remains an important part of the agency’s enforcement efforts. The number of whistleblower reports submitted to the agency once again increased in the 2017 FY, and the whistleblower reports continue to lead to significant enforcement recoveries, as well as to significant bounty awards to the whistleblowers, as detailed below. The Office of the Whistleblower’s 2017 report can be found here.
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gavelWithin the Dodd-Frank Act’s whistleblower provisions, Congress included some stiff anti-retaliation protections. Since the Act’s passage, however, the lower federal courts have struggled to try to determine whether the anti-retaliation protections apply only to whistleblowers who file reports with the SEC or whether or not the protections extend to individuals who file internal whistleblower reports within their own companies. A split on this issue has developed within the federal circuit courts and now the United States Supreme Court may have the opportunity to address the question.
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SEC logoWhen Congress created the SEC Whistleblower program in the Dodd-Frank Act, one of the requirements was that the SEC’s Office of the Whistlblower would provide an annual report to Congress. On November 15, 2016, the SEC released its annual whistleblower report for the 2016 fiscal year (which ended September 30, 2016). The report shows that the agency continues to make substantial awards to whistleblowers, with six of the ten largest awards being made in FY 2016. The report also shows that the volume of whistleblower tips to the agency continues to increase as well. A copy of the agency’s FY 2016 report can be found here.
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wb-100-millionOne of the signature features of the Dodd-Frank Act was its creation of an SEC Whistleblower program. Under the program, the SEC can award whistleblowers a bounty of between ten percent and thirty percent of any recoveries the SEC makes in excess of $1 million as result of the information whistleblower provided. The program went into effect in 2011, and the agency immediately began receiving a huge volume of whistleblower reports. Over time the agency has made a number of awards, including the September 2014 award of $30 million, which is still the largest award under the whistleblower program.

While the program has been in operation now for several years, it recently kicked into high gear and the program has passed a number of important milestones. The trend lines suggest that the SEC whistleblower program is going to be an increasingly important part of the corporate liability landscape, and for that reason there are a number of important things to keep in mind.
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SEC logoThe SEC has long made it clear that it intends to protect whistleblowers and to suppress activities it believes will have the effect of discouraging whistleblower activity. The agency recently launched enforcement actions against companies that had incorporated various waivers in employee severance agreements that discouraged employees from reporting possible securities law violations to the SEC. The agency’s actions shows that the agency is prepared to actively target corporate actions the agency believe may suppress the whistleblowing process.
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globe blueOne of the Dodd-Frank Act’s signature features was its creation of potentially massive bounties for whistleblowers that reported financial fraud to the SEC. During the time that the Dodd-Frank whistleblower program has been in place, the agency has made a number of significant bounty awards. Mary Jo White, the SEC chairwoman, has said that the program “has rapidly become a tremendously effective force-multiplier, generating high quality tips and, in some cases, virtual blueprints laying out an entire enterprise, directing us to the heart of an alleged fraud.” The SEC’s whistleblower program has also attracted the attention of other countries’ securities regulators, with the various countries reaching a variety of conclusions about the program, particularly its bounty award feature. In the past several days, securities regulators in Ontario and in Germany have each adopted their own whistleblower programs. The different approach the regulators have taken is interesting, as discussed below.
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