The SEC's new whistleblower program has been the subject of extensive debate and discussion over the past several months. Starting in April, the program, mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act, will provide substantial payments--between 10 and 30 percent of any penalty over $1 million--to any employee who provides a tip to the SEC regarding any violation of U.S. securities laws. That tip can be made immediately by the employee to the SEC, or within 90 days of an original report made by the employee through an internal compliance program. For in-house counsel, this means a maximum of 90 days to investigate the tip and to self-report before the employee does.
Putting aside the perverse incentive this creates for employees to circumvent corporate compliance programs in favor of immediately reporting the tip to the SEC, this relatively short 90-day window also raises the potential that employers might unwittingly-- or even knowingly--elevate the need to self-report over the need to get the facts absolutely correct. In-house counsel must avoid the Hobson's choice of (i) self-reporting based on incomplete facts, or (ii) not self-reporting and allowing the employee to win the race to the SEC.