Law firm wants to see more protection from SEC for whistleblowers

Whistleblowers need to seek guidance when it comes to confidentiality agreements.

Whistleblowers are supposed to be protected by the Securities and Exchange Commission (SEC), yet more should be done to protect them from ramifications of their release of information, according to a report from Labaton Sucharow LLP.

In addition, the law firm noted in its annual report that more should be done to stop fraud in securities markets, and transparency should be improved for investors. The report also recommends that whistleblowers need to seek guidance when it comes to confidentiality agreements.

“Whistleblowers do not need an attorney to submit a complaint to the SEC,” the report explained. However it contended that, “current or prospective whistleblowers [need to] seek the advice of an experienced attorney when it comes to certain issues, including confidentiality agreements.”

The report aslo forewarned that companies may use employment contracts to restrict whistleblowing. Employees need to make sure their rights are protected, too.

“Individuals should … strongly consider consulting with experienced counsel before taking confidential documents from their employer, since taking certain types of documents, particularly those that are unrelated to possible violations or obtained in an unlawful manner, may expose the whistleblower to liability,” the report cautioned.

In addition, the law firm points out that the SEC gave out a significant number of awards over the past year, but it also denied a number of award applications. Many of these were filed more than 90 days after the relevant Notice of Covered Action. “Whistleblowers must be mindful of the logistical rules of the program, such as filing deadlines, to ensure that they preserve their rights and maximize their chances of obtaining a monetary award,” the law firm said.

Remember, too, the risk of retaliation is “substantial.” “It’s important for whistleblowers to understand this reality before deciding when, whether and how to come forward— in particular, whistleblowers should carefully consider the option of reporting possible violations to the SEC on an anonymous basis, since anonymity is one of the most effective ways to prevent retaliation,” the law firm recommends.

It was recommended too that to know risks of internal reporting. “The question of whether internal reporting can give rise to a Dodd-Frank [Act] retaliation claim remains an unsettled question, with courts coming down on both sides of the issue over the past year,” Labaton Sucharow said in the report.

It is noteworthy, as well, how the SEC Whistleblower Program offers a better chance of obtaining a maximum monetary award for whistleblowers who report internally, as opposed to going directly to the SEC.

And remember that the SEC is an “ally” for whistleblowers, the law firm said. It is also trying to punish unlawful retaliation.

“We expect the SEC to bring more retaliation claims in the year ahead,” the report said. “The past year demonstrates that the SEC Whistleblower Program can work–to root out misconduct, reward whistleblowers for actionable information, and protect whistleblowers from retaliation.”

Meanwhile, pro-whistleblower organizations have asked the SEC to clarify protections for employees, according to InsideCounsel.

Contributing Author

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Ed Silverstein

Ed Silverstein is a veteran writer and editor for magazines, websites and newspapers. A graduate of Harvard's Kennedy School of Government, he has won several...

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