We’re not a big fan of the SEC’s whistleblower rules.
They let FCPA reward seekers go straight to the government — without ever telling the boss, general counsel, chief compliance officer, internal auditors, or directors.
And they encourage employees who want to blow the whistle to snatch the company’s data, even if it’s proprietary, confidential, or privileged.
When the rules were adopted in May, we said whistleblower complaints will expose some big-time FCPA violations. But how many of the same violations would have come to light anyway? Before Dodd-Frank created the reward program, Sarbanes–Oxley had already made self-reporting of suspected violations a standard practice. Enforcement had increased ten fold in five years, making America’s antibribery regime the most robust on the planet — by a long shot. Wasn’t that good enough?
Apparently not. Which brings us to the era of Dodd-Frank.
Pursuant thereto, the SEC’s form for reporting a whistleblower complaint runs seventeen pages. Here are three (among many) of our least favorite parts:
- Describe all supporting materials in the complainant’s possession and the availability and location of any additional supporting materials not in complainant’s possession. Use additional sheets, if necessary.
- Describe how and from whom the complainant obtained the information that supports this claim. If any information was obtained from an attorney or in a communication where an attorney was present, identify such information with as much particularity as possible. In addition, if any information was obtained from a public source, identify the source with as much particularity as possible. Attach additional sheets if necessary.
- Identify with particularity any documents or other information in your submission that you believe could reasonably be expected to reveal your identity and explain the basis for your belief that your identity would be revealed if the documents were disclosed to a third party.
Download the complete SEC whistleblower complaint form here.
I tend to think that the concern over whistleblowers reporting directly to the SEC are overblown. The False Claims Act has had whistleblower bounties for a while, and the "normal" whistleblower still reports in-house first. The problem is that the whistleblower is then fired, demoted, transferred, or ignored. Tom Fox introduced me to the term "process fairness" to describe that people can accept adverse decisions easier if the process is perceived to be fair.
Whistleblowers can sometimes be the victims of unfair processes.
Where the real action is, in my opinion, is in the self-disclosure calculus that has now changed permanently. I would estimate that 90-95% of all in-house investigations never see sunshine. They're labeled "insufficient evidence" or "unsubstantiated," and filed away, never to be seen again except in the aggregate when it gets reported up. Companies used to have comfort that once an investigation was closed, it was closed. Now? Not so much. They have to worry that not only is a whistleblower going to go to the SEC, but that they're going to go to the regulator with a pile of documents. I spoke with one lawyer who said what he's seeing now—unlike in the past—is that whistleblowers are going to the SEC with "inches of documents."
That's a scary prospect.
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