THE SEC OFFICE OF THE WHISTLEBLOWER OPENS FOR BUSINESS New SEC Rules Provide Substantial Incentives and Protections to Encourage Individuals to Report Possible Violations of the Federal Securities Laws OVERVIEW Recently, the Securities and Exchange Commission officially opened its new Office of the Whistleblower. This Office will administer the SEC s new Whistleblower Program under Section 21F of the Securities Exchange Act of 1934 1 (Exchange Act). The SEC adopted final rules in May 2011 to implement Section 21F, entitled Securities and Whistleblower Incentives and Protection, as required under Section 922 of the Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). The new program offers potentially large payouts to individuals who report information to the SEC (and others) that leads to successful enforcement actions. Whistleblowers can now hope to receive 10% to 30% of monetary sanctions collected in excess of $1 million. There are also broad whistleblower protections under Section 21F that prohibit employers from taking a wide array of adverse personnel actions against employees who report possible wrongdoing. The protections against retaliation apply even if a complaint does not result in an SEC enforcement action or if the whistleblower ultimately fails to receive an award, and the protections apply even if the whistleblower never goes to the SEC, but makes statements protected by the Sarbanes-Oxley Act of 2002. 2 The Whistleblower Program presents a number of challenges for public companies and financial services entities. Specifically, the large cash incentives may encourage whistleblowers to bypass internal compliance programs and report directly to the SEC. As a result, a company s internal efforts to detect and rectify violations may be undermined. There are also broad anti-retaliation provisions in the new rules. These liberal protections for whistleblowers may increase the risk of liability for companies based on claims of retaliation. KEY POINTS IN THE NEW WHISTLEBLOWER RULES Definitions A whistleblower is defined as an individual who, alone or jointly with others, provides information to the SEC relating to potential violations of securities laws. The whistleblower must be a natural person (who may remain anonymous), who provides the SEC with information relating to possible violations of the federal securities laws that have occurred, 1 See SEC Final Rules, 17 C.F.R. 240.21F-1 F-17 (2011). 2 See id. 240.21F-2(b) (extending protections afforded by Securities Exchange Act of 1934, 15 U.S.C. 78u- 6(h)(1)).
are ongoing, or are about to occur. Certain types of individuals, such as government officials, are 3 not eligible for awards. Submitting a Tip The Office of the Whistleblower Web site http://www.sec.gov/whistleblower provides potential informants with a number of resources for reporting to the SEC, including a Frequently Asked 4 Questions Page and a link to the SEC Final Rules addressing the Whistleblower Program. 5 Most importantly, the site provides individuals with a one-page Tip form to submit reports online. Consequently, the SEC has made it very simple for anyone to submit a tip. Eligibility To be eligible for an award, a whistleblower must submit original information to the SEC in accordance with all the procedures and conditions set forth in the SEC rules. Original information must be based on the whistleblower s independent knowledge or independent analysis, and not already known to the SEC, and not derived exclusively from certain public sources. The rules allow a whistleblower to mark his place in line through a 120-day lookback period if he 6 first reports potential violations through internal reporting systems (or others), and within 120 7 days reports the same information to the SEC. Further, the whistleblower earns credit and potentially a higher award if (after he reports 8 internally) the company self reports violations to the SEC. The original information must lead to the recovery of more than $1 million in sanctions (including penalties, disgorgement, and pre- or post-judgment interest). Criteria for Determining Amount of Award The Commission has discretion to determine the percentage amount of the award (between 10% and 30%). 3 Id. 240.21F-2, F-8. 4 SEC Office of the Whistleblower, http://www.sec.gov/whistleblower. 5 A six-page version of the Tip form may be printed and submitted by fax or mail. See id. 6 Rule 21F-4(b)(7). In addition to internal reports, the lookback provision applies to original information reported to Congress, any other authority of the federal government, a state Attorney General or securities regulatory authority, any self-regulatory organization, or the Public Company Accounting Oversight Board. 7 See Rule 21F-4(c)(3). The SEC s Adopting release makes clear that the 120-day grace period applies only to whistleblowers. Moreover, in his public remarks in support of the Rules, the Director of Enforcement, Robert Khuzami, emphasized that... the final rules do not change the fact-based analysis that each entity should conduct when considering whether and when to report potential securities violations to the Commission. We will continue to expect companies to self-report on a timely and responsible basis. Robert Khuzami, SEC Director of Enforcement, Remarks at Open Meeting Whistleblower Program (May 25, 2011), available at http://www.sec.gov/news/speech/2011/spch052511rk.htm. 8 See SEC Adopting Release, 76 Fed. Reg. 34,325 (June 13, 2011) (to be codified at 17 C.F.R. pts. 240-249). 2
Factors that may increase the amount of a whistleblower s award include: the significance of the information provided, the degree of assistance, law enforcement interest, and the extent to which the whistleblower participated in internal compliance systems. 9 Factors that may decrease the amount of a whistleblower s award include: culpability, unreasonable 10 delay in reporting securities violations, and interference with internal compliance systems. Retaliation Protections An employer is prohibited from taking a number of adverse personnel actions against a whistleblower who: Provides information to the Commission; Initiates, testifies, or assists in any investigation or Commission action related to the information; or Discloses information required or protected under Sarbanes-Oxley. 11 Anti-retaliation provisions apply where a whistleblower holds a reasonable belief, meaning, a subjectively genuine belief, that the information he provides demonstrates a possible violation of the federal securities laws (or, where applicable, a violation of Section 1514A(a)), 12 and that this belief is one that a similarly situated employee might reasonably possess. Retaliation protections apply even when the whistleblower is ultimately not entitled to an award. Anti-retaliation provisions grant whistleblowers a private cause of action. Suits by whistleblowers for retaliation may be filed directly in federal court, within six years, or three years from when facts material to the right of action are known or reasonable should have been known, but in no event more than 10 years after the date of the violation. The adopting release expressly notes that the Commission has the authority to bring enforcement actions against employers who retaliate against employees for providing information in accordance with Section 21F. 13 MITIGATING THE RISKS Companies should affirmatively prepare for an increase in the quality and quantity of reports made internally and directly to the SEC. Whistleblowers are likely to report any perceived wrongdoing to the SEC even if they first report internally in an effort to obtain payouts. As reported by the new Chief of the Office of the Whistleblower, Sean McKessy, the SEC has already seen an increase in the quality of the tips it has received since the passage of the Dodd-Frank Act in July 2010. 9 See Rule 21-F-6 (a)(1-4) 10 See Rule 21-F-6(a)-(b). 11 See 15 U.S.C. 78u-6(h)(1)(B). 12 Anti-retaliation protection afforded by the Rules includes not only reports of securities law violations, but also various other violations of federal law. See e.g., 18 U.S.C. 1341, 1343, 1344, and 1348. 13 See 15 U.S.C. 78u-6(h)(1)(B). 3
There are a number of proactive measures companies and financial institutions should consider as they plan for managing and mitigating the risks created by the new whistleblower rules. Among these are: Review and enhance internal whistleblower policies and procedures. These policies should: Clearly document the company s whistleblower policies in language that is easy to understand and follow; Demonstrate a strong top to bottom culture of compliance; Encourage employees to internally report wrongdoing; Ensure anonymity and confidentiality; Cover all possible violations of the federal securities laws and encourage employees to use confidential hotlines and complaint mechanisms; and Be written in multiple languages, distributed to all employees, and easily accessible online. Establish mandatory training programs and refresher programs that credibly demonstrate an institutional commitment to integrity and internal compliance. Training programs should: Emphasize employee obligations to report suspected wrongdoing to appropriate channels within the company; Highlight actions that may be perceived as impeding or retaliating against whistleblowers; Include new hires, managers, and supervisors and periodic training for existing employees; and Provide clear and precise training materials that are easily accessible to all employees. Develop a comprehensive plan that facilitates a quick response to allegations of wrongdoing and related SEC inquiries. The plan should: Designate specific employees to address complaints and conduct initial internal investigations; Allow quick access to electronic data, documents, and other relevant material to the investigative team; Develop clear protocols to manage documents and information in a manner that preserves privilege; and Establish a clear process for timely investigations of complaints. 4
CONCLUSION The SEC s new Whistleblower Program represents a significant development in the enforcement of the federal securities laws. These changes require companies to take a proactive approach in response to the new Whistleblower Program. For more information, please contact one of the Thompson & Knight attorneys below: CONTACTS Timothy R. McCormick +1.214.969.1103 Timothy.McCormick@tklaw.com Rose L. Romero +1.214.969.2500 Rose.Romero@tklaw.com William M. Katz, Jr. +1.214.969.1330 William.Katz@tklaw.com Michael W. Stockham +1.214.969.2515 Michael.Stockham@tklaw.com This Client Alert is sent for the information of our clients and friends. It is not intended as legal advice or an opinion on specific circumstances and is not intended or written to be used, and may not be used, by any person for the purpose of avoiding penalties that may be imposed under United States federal tax laws. 2011 Thompson & Knight LLP 5