The Securities and Exchange Commission (SEC) recently issued its 2015 Annual Report to Congress on the Dodd-Frank Whistleblower Program. The SEC’s latest whistleblower report highlights that the agency’s Office of the Whistleblower continues to strengthen what is termed a “successful program.”
Per our prior posts, the SEC’s Whistleblower Program, which was first launched in 2011, provides a monetary incentive to corporate insiders and others with relevant information concerning potential securities violations to report such information to the Commission. Those who provide high-quality, original information, resulting in SEC enforcement action with sanctions exceeding $1 million, are eligible for awards ranging from 10 percent to 30 percent of the money collected by the Agency.
The SEC’s 2015 Whistleblower Report reveals several interesting trends that can help businesses improve their securities compliance strategies. Below is a brief summary:
Continued uptick in tips and awards: The SEC’s Whistleblower Program in fiscal year 2015 awarded $37 million to tipsters. The SEC received nearly 4,000 whistleblower tips, which is a 30 percent increase over the number of tips received in fiscal year 2012. According to the SEC, “the uptick in whistleblower award claims is attributable to the increased public awareness of the SEC’s whistleblower program and in response to the tens of millions of dollars that have been paid to whistleblowers under the program.”
Interpretation of anti-retaliation provisions: The SEC continues to take a very active role in Dodd-Frank anti-retaliation suits brought by whistleblowers, filing amicus curiae briefs in several suits that argue against a narrow interpretation of the anti-retaliation employment protections established by the Dodd-Frank Act. In August 2015, agency issued interpretive guidance clarifying that the Dodd-Frank anti-retaliation provisions apply to individuals who report information of possible securities law violations irrespective of whether they report such information internally or to the SEC. This fall, the Second Circuit Court of Appeals in Berman v. Neo@Ogilvy LLC deferred to the SEC’s interpretation.
Scrutiny of confidentiality provisions: The Office of the Whistleblower continues to focus on whether employers’ use of confidentiality, severance, and other kinds of agreements interferes with an employee’s ability to report potential wrongdoing to the SEC. For the first time, the agency brought charges under Rule 21F-17(a) against a company for including language in confidentiality agreements that was deemed to impede whistleblowers from reporting to the SEC. Rule 21F-17(a) provides that “[n]o person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement…with respect to such communications.” This issue will continue to develop, and similar actions are expected in the future.