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Litigation: SEC pays first whistleblower reward

This first reward does little to dispel criticisms of the whistleblower program

With the start of the NFL season comes a different kind of bounty program. The Securities and Exchange Commission (SEC) recently announced that it paid its first reward to a whistleblower under the Dodd Frank Act’s new whistleblower program. Federal regulators awarded almost $50,000 to an informant who helped the SEC tackle an investment firm engaged in fraud. The reward amounted to a 30 percent share of the sanctions collected to date—the maximum reward percentage allowed.

The whistleblower, who remains anonymous, provided information and documents to the SEC which ultimately led to the agency identifying and prosecuting the fraud. The law prohibits the SEC from disclosing any additional information about the informant, the investment firm or what documents and information the whistleblower provided.

As we all know by now, the whistleblower program is the brain-child of the Dodd-Frank Act. The purpose, of course, is to encourage individuals to act early to expose corporate fraud, by rewarding individuals who voluntarily provide original information that leads to successful enforcement and monetary sanctions of more than $1 million. For the informant, the upside is huge—with rewards ranging from between 10 percent and 30 percent of the sanctions recovered by the SEC. The information must be new, unknown from any other source and it has to meet the SEC standard of high-quality tips rather than those the SEC characterizes as “less helpful.”

So how effective has the program been? It’s difficult to know, and this most recent development provides very little guidance. According to the SEC, the year-old program results in approximately eight tips of fraud per day—certainly an impressive number, but obviously not a measure of success. Indeed, the SEC’s most recent reward was the first reported payout to a whistleblower, suggesting to many that the quality of the tips have been poor and playing into the early criticism of the program. You may recall, for example, the argument that although the whistleblower provisions encourage proactive steps to expose a fraud, the prospect of considerable rewards for “original” information make it a no-risk proposition for employees to report fraud even if they lack the confidence that wrongdoing has actually occurred. On the flip side, it has been (and continues to be) argued that the program encourages whistleblowers to allow potential fraud to develop, unchecked, until the informant believes the information is concrete enough to generate a reward. And that, of course, runs contrary to the program’s stated purpose to promote early exposure of corporate fraud and misconduct.

Many companies and industry experts also argued that the program compromises companies’ ability to police themselves and internally weed out fraud. They argued, understandably, that companies sometimes spent thousands of man-hours and dollars developing compliance programs that required employees to first report any suspicions of fraud to compliance personnel. Although the SEC still encourages that first step, the compliance process is viewed by many as less palatable for the whistleblower who prefers the safe-haven of anonymity and a possible government reward.

In short, the criticisms of the whistleblower program remain alive and well, and the recent reward—the first in a year—has done little to change that.

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Matthew Ingber

Matthew Ingber is a litigation partner at Mayer Brown.

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