On March 19, the Securities and Exchange Commission announced that it had awarded a combined $83 million in whistleblower rewards to three whistleblowers. These awards represent the SEC’s largest awards under the Dodd-Frank whistleblower program.
As we have discussed, the SEC whistleblower program provides for awards of 10-30% of the SEC’s ultimate recovery to those who submit tips relating to a securities violation. Under this program the SEC has awarded over $250 million to whistleblowers who have assisted in the recovery of over $1 billion in financial remedies.
The SEC program operates somewhat differently than the FCA and other qui tam statutes. SEC provides a very helpful graphic on the process.
But in general, a whistleblower files a Tip, Complaint, Referral (TCR) with the SEC office of the whistleblower. The SEC then investigates and at its choice may pursue claims based on the tip. SEC periodically posts “notices of covered action” detailing any results potentially subject to whistleblower rewards and the whistleblowers then must file to claim their share of the recovery. Notably, the program does not give the whistleblower the right to pursue his own claims should the SEC choose not to.
One aspect of the program that is particularly unusual is the extent to which the SEC goes to assist whistleblowers in keeping a low profile. In fact, if a whistleblower is represented by an attorney, he may choose to be completely anonymous to the SEC. That was the case here, as the SEC did not announced the names or the matter. Instead it announced only that two whistleblowers will share nearly $50 million and a third whistleblower will receive more than $33 million.
The SEC reward program has been very successful over a short period and clearly has a lot to commend it. However, while it is structured to be accessible to whistleblowers who are not represented by attorneys, a goal we wholeheartedly agree with, we think it is a mistake for a whistleblower to file claims before speaking with an attorney. In addition to the advantage of remaining anonymous provided by counsel, many potential whistleblowers are unaware of the extent the program requires vigilance to identify and claim rewards. Moreover, because the system vests so much discretion with SEC, we find that many whistleblowers submit tips and feel they have fallen into a “black hole”; never hearing from SEC or getting the chance to clarify any questions raised by their tip. In our experience in appropriate cases, whistleblower attorneys can increase the likelihood that a tip be acted on in a timely fashion. They can help ensure that a tip is seen by the right SEC specialists and can act as a helpful screening mechanism assuring the SEC that should it pursue the case competent counsel stand ready to assist.