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Do whistleblowers have any protection against retaliation under your whistleblowing program?
Yes. The Dodd-Frank Act includes anti-retaliation provisions for whistleblowers, under which an employer may not discharge, demote, suspend, harass, or in any way discriminate against a whistleblower because of any lawful act done by the whistleblower to provide information to the CFTC under the whistleblower program or assist the CFTC in an investigation or proceeding based on the information submitted. A whistleblower who suffers retaliation can bring a private action in federal court against the employer within two years of the retaliatory act. The whistleblower may be entitled to reinstatement, back pay, litigation costs, expert witness fees and attorney’s fees.
Can retaliation against a CFTC whistleblower trigger other anti-retaliation laws?
Yes. If a whistleblower also files with the SEC, the company’s retaliation may also violate the SEC’s Dodd-Frank whistleblower anti-retaliation provisions. Depending upon whether the allegation involves fraud against shareholders of a publically-traded company, the anti-retaliation provisions of the Sarbanes-Oxley Act may also be triggered. Additionally, several states have enacted anti-retaliation laws that may be applicable.
May a whistleblower submit an anonymous report? If not, how will your office protect the whistleblower’s identity?
A whistleblower can file with us anonymously, either directly or through an attorney. Because we may need to contact the whistleblower for more information, and because the whistleblower is required to cooperate with us while we are investigating a matter, we advise anonymous whistleblowers to provide some means of contact, such as a telephone number or email address.
We are committed to protecting whistleblowers’ identities, whether they file anonymously or not. For instance, we will not disclose a whistleblower’s identity in response to requests under the Freedom of Information Act. As a general rule, the CFTC treats information learned during the course of an investigation, including the identity of a source, as non-public and confidential information.
There are limits on our ability to shield a whistleblower’s identity. In an administrative or court proceeding, we may be required to produce documents or other information that would reveal a whistleblower’s identity. In appropriate circumstances, we may also provide whistleblower information, subject to confidentiality requirements, to other authorities.
Once whistleblowers report misconduct to your office, do you notify them whether action has or will be taken with respect to the issues raised in their reports?
As a matter of policy, we cannot update anyone as to whether any action has been taken, or will be taken, regarding the information they provide. The fact that the Commission may investigate a company or person generally will not be disclosed until such time as a public proceeding is brought either before the Commission or in federal court.
However, when the CFTC obtains a final judgment that contains more than $1 million in monetary sanctions, we will post a “Notice of Covered Action” for 90 days on our Whistleblower Notices webpage on www.cftc.gov. Whistleblowers and their representatives should monitor the webpage periodically. Anyone can also sign up for our Email Subscription Service or RSS Feeds to receive Whistleblower Notices automatically. Other final judgments and orders are published by the Enforcement Division on the Enforcement Press Releases webpage.
Do whistleblowers and/or their attorneys play a role in your investigations?
Yes, to an extent. The amount of whistleblower participation is determined by our investigatory needs as well as the quantity and quality of the whistleblower’s information and insight, but it is within our discretion. We may interview a whistleblower, take sworn testimony or request documents or other information. Whistleblowers are required under our Rules to provide further information and assistance if requested. We may also require a whistleblower to enter into a confidentiality agreement to ensure that the subject of an investigation is not made aware of the investigation prematurely.
How can potential whistleblowers contact the CFTC Whistleblower Office and what information should they have available when they do so?
To become a whistleblower, submit a Form TCR by mail or facsimile to Commodity Futures Trading Commission, Whistleblower Office, 1155 21st Street, NW, Washington, DC 20581, Fax: (202) 418-5975. A whistleblower can file directly or through an attorney. In general, a quality whistleblower submission should have (i) a detailed set of allegations, (ii) a description of the whistleblower and the sources of the information provided, and (iii) supporting materials. Anyone with questions should send an email to [email protected].
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Jessica Tillipman is a contributing editor of the FCPA Blog. She’s the Assistant Dean for Field Placement and Professorial Lecturer in Law at The George Washington University Law School. She also teaches an Anti-Corruption seminar that focuses on corruption control issues in government procurement.