When Dodd-Frank was signed into law in July 2010, many thought that one of its most powerful features was the creation of a new whistleblower program. In addition to creating the Office of the Whistleblower, the rules also created a new bounty system intended to incentivize whistleblowers to approach the SEC with their suspicions. The dollars seemed potentially significant: a whistleblower can receive 10 to 30 percent of the penalty that the SEC imposes based on information the whistleblower provides to the SEC (provided, however, that the SEC or other government agency collects at least $1 million).
At first nothing much happened. When the SEC released its annual report on the Office of the Whistleblower’s activities for 2012, there wasn’t much to say. Sure the Office received 3001 tips; however, that was about one-tenth of the number the SEC had expected to receive. Moreover, all of these 3001 tips in 2012 resulted in exactly one payment that year. This was the August 2012 SEC award of $50,000 to one anonymous person. Few details of the case were given in the press release, making the deterrent effect of this outcome a little questionable.
The next bounty was also a bit of a snoozer: $125,000 awarded to three anonymous whistleblowers. Shutting down the sham hedge fund they identified was, unquestionably, very important. The amount of the bounty, however, while healthy, wasn’t exactly eye-popping.
Third time’s the charm? Maybe so. On October 1, 2013, the SEC announced that it would be paying an anonymous whistleblower more than $14 million. In announcing the award, the SEC emphasized that the whistleblower’s information helped the SEC resolve the alleged potential fraud very quickly: less than six months elapsed between the time of the whistleblower’s contacting the SEC and the SEC’s bringing an enforcement action that resulted in the recovery of investor funds.
A big recovery for investors in an unusually short amount of time is definitely a significant win for the Office of the Whistleblower, not to mention the investing public and the integrity of the financial markets. To be sure, it’s too soon to declare the Office a big success with its having only three resolved cases in almost two years. Nevertheless, the $14 million award is notable. Certainly potential whistleblowers are likely to regard the recent $14 million payment as encouraging when considering whether to step forward.
Does the SEC’s demonstrated ability to reward whistleblowers with multi-million dollar awards mean that corporations should stop encouraging their employees to come to them first if an employee suspects wrong-doing? Not at all. As a starting point, the rules concerning a corporation’s obligation to provide an anonymous mechanism to allow potential whistleblowers to come forward and report suspected financial fraud without fear of retaliation remain in place.
Moreover, it’s my contention that most employees want to work at a company where they and others are rewarded for behaving ethically. As a result, it’s still the case that the best deterrent to financial fraud at a company is an ethical corporate culture coupled with clear information about the steps employees can take to raise issues they find troubling. Companies that provide an environment in which employees can raise troubling issues well before these issues snowball into something much uglier are companies that will attract and retain the best employees .
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