Whistleblower Laws & Internal Investigations: Tactics & Best Practices

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1 October 2, 2012 Whistleblower Laws & Internal Investigations: Tactics & Best Practices Sue Hastings, Partner Cleveland Labor & Employment Cipriano Beredo, Partner Cleveland Corporate Finance Victor Genecin, Of Counsel New York Litigation 37 Offices in 18 Countries Meghan Hill, Associate Columbus & New York Labor & Employment

2 Speakers Sue Hastings Partner, Cleveland T [email protected] Cipriano S. Beredo III Partner, Cleveland T [email protected] Victor Genecin Of Counsel, New York T [email protected] 2 Meghan Hill Associate, Columbus and New York T [email protected]

3 Agenda Statutory Law Review Case Law Update Compliance Guidance Investigation Steps Q&A 3

4 Federal Whistleblower Laws Dodd Frank Act Sarbanes-Oxley Act Foreign Corrupt Practices Act False Claims Act Consumer Product Safety Act of 2008 Environmental Whistleblower protections Pipeline Safety Improvement Surface Mining Act IRS Tax Whistleblower Reward National Security Whistleblower protections Occupational Safety and Health Act (OSHA) Transportation Whistleblower protections Workplace / Discrimination Rights FLSA, ERISA, Title VII, ADEA, ADA, etc. 4

5 Why Encourage Internal Whistleblowing? $104 million whistleblower award by IRS $50,000 whistleblower award by SEC $1.37 million whistleblower award under FCA $1.06 million jury verdict for whistleblower retaliation under NJ state law $14 million whistleblower award under FCA 5

6 Sarbanes Oxley Act (SOX) Potential Whistleblowers Current employees Former employees Applicants Covered Employers Any nationally recognized statistical rating organization, or Publicly traded company including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of the company, or Any officer, employee, contractor, subcontractor, or agent of such company 6

7 Interpretation of Covered Employees Employees of subsidiaries Clearly covered if financials are included with the publicly traded parent Contractors of Public Companies Lawson v. FMR, LLC, 670 F.3d 61 (1 st Cir. 2012) Did not extend coverage Spinner v. David Landau & Assoc., ARB Case No (May 31, 2012) Extended coverage 7

8 Extraterritorial Application of SOX Foreign citizen working outside the US for a non-us subsidiary not covered US citizen working outside the US for a non-us subsidiary covered 8

9 SOX: Protected Activity Provide information or assist in an investigation conduced by a Federal regulatory or law enforcement agency, Congress, or a person with supervisory authority where the employee reasonably believes that the reported conduct is: Mail fraud Wire fraud Bank fraud Securities fraud Violation of any SEC rule or regulation or Fraud against the shareholders File, testify, participate in or otherwise assist in a proceeding. 9

10 Who can employees report to? Protected Reporting Supervisors Federal regulatory or law enforcement agency Congress Reporting Not Protected Media 10

11 SOX: Remedies for Retaliation Reinstatement Back pay plus interest Litigation costs, expert witness fees and reasonable attorney s fees 11

12 Dodd-Frank Act Securities and Exchange Act Commodity Exchange Act Bureau of Consumer Financial Protection Act 12

13 Securities & Exchanges Act / Commodity Exchange Act Potential Whistleblowers Any individual Exclusions:» Member, officer, or employee of the SEC, DOJ, regulatory agency or law enforcement organization» Foreign government officials» Any whistleblower convicted of a criminal violation related to the action» Any whistleblower who obtained information through an audit of the company s financial statements» Spouse, parent, child or sibling of a member of the SEC» Any whistleblower who knowingly and willfully makes any false, fictions or fraudulent statement or representation 13

14 Securities & Exchanges Act / Commodity Exchange Act Covered Employers Employers who engage in business subject to the Securities and Exchange Act / Commodity Exchange Act 14

15 Protected Activity Providing information to the SEC with information of a possible violation of Federal securities law Initiating, testifying in, or assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information Making disclosures that are required or protected under SOX, the Securities and Exchange Act, or any other law, rule or regulation subject to the jurisdiction of the SEC (including FCPA accounting requirements) 15

16 Extraterritorial Application of Dodd Frank Asadi v. G.E. Energy (USA), LLC (S.D. Tex. June 28, 2012) Refused to extend coverage extraterritorially 16

17 Remedies for Retaliation Reinstatement Two times the amount of back pay plus interest Litigation costs, expert witness fees and reasonable attorneys fees 17

18 Incentive Payments Qualifying whistleblower may receive 10-30% of the monetary sanctions the SEC is able to collect if the whistleblower: Voluntarily provides information to the SEC Provides original information That leads to successful enforcement SEC collects monetary sanctions of more than US$1,000,000 Only applies to individuals who provide information relating to a violation of the securities laws to the SEC 18

19 Joint Action Under Dodd-Frank Whistleblower includes two or more individuals acting jointly who provide information Individual who provided information to attorneys to give to SEC covered by Dodd Frank 19

20 Dodd Frank: Compliance Employees Employees with a fiduciary duty to report violations to the company including a compliance officer, director, trustee or partner are initially excluded from qualifying as a whistleblower Once 120 days have elapsed since an officer informed the company s audit committee, chief legal officer or chief compliance officer, a person with a fiduciary duty may become a whistleblower eligible for a bounty, even if he received the information for another person 20

21 21 Compliance

22 Impact of Whistleblower Award Program on Internal Reporting No requirement that whistleblower first report issue to company However, SEC included provisions intended to incentivize internal reporting Whistleblower will not lose priority if the whistleblower first reports to the company and subsequently reports to SEC within 120 days Whistleblower gets credit for information or additional violations uncovered during internal investigation Compliance with company compliance policies will be a factor the SEC uses in determining awards 22

23 Compliance Actions to Consider to Encourage Internal Reporting First Update and Enhance Training Programs Highlight financial benefits from reporting to the company first and working through the internal compliance process Focus on collaborative joint-reporting to the SEC Be careful not to discourage individuals from reporting directly to the SEC if they so desire Speed is critical Have an action plan to respond and investigate quickly when potential violations are reported Foster a culture of compliance 23

24 Additional Compliance Best Practices to Respond to Dodd-Frank Whistleblower Program Review and update compliance policies for anonymous reporting and hotlines Ensure internal reporting procedures are simple, straightforward and parallel the SEC s reporting requirements Consider adopting a policy obligating employees to make an internal report of all suspected violations Review and strengthen anti-retaliation policies 24

25 Additional Compliance Best Practices to Respond to Dodd-Frank Whistleblower Program (con t) Review employee confidentiality agreements and corporate policies regarding disclosure to confirm that they do not prohibit whistleblowing Communicate with internal whistleblowers to give them confidence the company is getting to the bottom of the issues that are raised Take corrective action where wrongdoing is discovered 25

26 26 Investigation

27 Complaint Get complaint in writing date is important Assess the nature of the complaint Immediate Action Needed 120 day look back rule Immediate threat to business? Financial/embezzlement? Potential for destruction of records? 27

28 Who Should Conduct the Investigation? Depends upon nature of complaint/allegations Who accused? Internal violation vs. violation of law? Audit Committee / Human Resources / Investigation will not be privileged In-House Counsel Parts of investigation can remain privileged Clarify role representing company, not employees Outside Counsel The entire investigation can remain privileged Information is not original information for bounty provisions of Dodd-Frank 28

29 First Steps Document Preservation litigation hold Define Scope of Investigation Identify relevant witnesses impacts preservation of evidence and frames investigation process Work with IT to identify relevant documents/sources Review documents Interview witnesses 29

30 Witness Interviews Logistics Interview witnesses separately Should be interviewer and second person to observe the interview Notifications & Explanations General Confidentiality Upjohn warning to protect privilege Retaliation not tolerated Questioning Who, what, where, when, why, how Record witness s statements/facts -- not your conclusions 30

31 Witness Interviews Cooperation Generally, it constitutes a legitimate, non-discriminatory reason to discharge an employee who refuses to cooperate during an internal investigation. Right to Consult with Counsel 31

32 Wrapping Up Investigation Keep whistleblower updated on status/outcome Protect whistleblower against retaliation Written notification of results to target of investigation privilege issues Other employees not appropriate to inform them of results Investigation summary Assess need to self-report to governmental agency How company handles investigation will influence shareholder and regulator confidence Credible internal investigation may narrow regulator s focus to testing reliability of company investigation Info subject to attorney/client privilege not original information 32

33 Things to Consider Compliance with internal policies Retaliation against whistleblower Electronic monitoring/acceptable use policies NLRA or collective bargaining agreement issues Defamation of the accused avoid revealing specific allegations with witnesses Attorney-Client Privilege Waiver of privilege in exchange for cooperation credit Preservation of documents 33

34 Questions? Sue Hastings Partner, Cleveland T [email protected] Cipriano Beredo Partner, Cleveland T [email protected] Victor Genecin Of Counsel, New York T [email protected] 37 Offices in 18 Countries Meghan Hill Associate, Columbus and New York T [email protected]

35 Credit Information Robin Hallagan Offices in 18 Countries